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March 25, 2005

constitutional rights: three

Don Herzog, Herzog: Constitutional Rights: March 25, 2005

Lib, kindly bring our occasional readers up to speed, will you?

Lib:  Don't trust a word this guy says!  He's crazy!  He hires me, he gets me arrested for defacing public property, he refuses to bail me out, he — [suddenly sedate] Um, Don, I see you brandishing my contract.  It's like magic.  Every bone in my staunchly libertarian body shudders in religious dread when I see a contract.

Yes, Lib, you and I have contracts with Central Casting and you're in violation.  Please review what we've learned so far about constitutional rights.

Lib [sullenly, dutifully, but obligingly warming to his task]:  Well, let's take your right of free speech.  Your first amendment right doesn't protect you against any and all ways the state burdens your speech.  The income tax doesn't raise first amendment issues, and it doesn't even if you can show that if you had thousands more dollars you'd start a political magazine.  But if the state shuts you up because they think your ideas are dangerous or repugnant, they've violated the first amendment.

Why thank you, Lib.  And then

Lib:  And then you said that left and right both twist their approaches to constitutional rights to get their favorite policy outcomes.  And you just about knocked me off my chair when you said that you agreed with the right about equal protection.  You said that the government doesn't violate equal protection if it uses an employment test that four times as many blacks as whites fail.

Not unless there was evidence they adopted the test in order to get that racially disparate outcome.  And Lib, you weren't sitting down.

But yes, the left wants more from equal protection than protection against state measures aimed at forbidden racial outcomes.  The left often wants courts to reach in and overrule laws that happen to disadvantage blacks, even if the laws don't do that on their face (as, say, "no blacks may work for the police" would), and even if there's no evidence the state adopted the "facially neutral" measure that turns out to disadvantage blacks for bad, pretextual reasons.  And I think that's wrong.

Lib:  Why Don you are the very paragon of independent thought.  Careful about toeing the party line, or David V. will ban you from this blog.

Sorry, Lib, you have no clue about David.  Or the blog.  So let's turn to free exercise.  Lib, since 1796 Tennessee's constitution has said this (Art. 9, sec. 1):

Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.

And a statute extended the same provision to bar ministers from sitting in state constitutional conventions.  Think they can do that?

Lib:  No way.  The law is aimed at religion on its face and so violates the first amendment protection of free exercise of religion.  The law doesn't quite tell them they can't be ministers, but it singles out ministers to be deprived of political rights.  And I bet if we take seriously the language that it's to make sure ministers properly serve religion, the state can't do that either.  It's just as bad as religious tests for public office.

Quite right:  the Supreme Court thought this was an easy case.  Take another case.  Hialeah adopts a complicated series of provisions regulating the "slaughter" and "sacrifice" of animals.  They define "sacrifice" as "to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption."  And they say they're concerned about cruelty to animals.  May they do that?

Lib:  Ooh, that's trickier.  The language of "sacrifice" and "ritual" sounds like it's aimed at religion.  But maybe not.  What do we know?

The locals were horrified by the Church of Lukumi Babalu Aye and its observance of Santeria.  Most of the regulations looked tailor-made to prohibit the Church's practices of animal sacrifice.

Lib:  The jig is up.  (Dontcha love it when I say quaint stuff like that?)  Even if we grant that the ordinances weren't aimed at religion on their face, there's an illicit motivation here.  Strike that law down!

Relax, Lib, the Supreme Court already did.  One last case.  Oregon has a controlled substances act, which

Lib [eyes bulging, a blood vessel on his forehead pulsing]:  I hate controlled substances acts!

Thanks for sharing, Lib.  But their controlled substances act, merrily trampling on the chemical liberties of the good citizens of Oregon, includes peyote as a forbidden substance.

Lib:  Ooh, nasty stuff.  Ever try peyote, Don?  Hideously bitter.  Makes you nauseated.  Makes you puke, actually.  Makes me puke, anyway.

Thanks for sharing, Lib.  And Oregon also provides that if you're fired for misconduct, you don't get unemployment benefits.  So two Native Americans who used peyote in religious ceremonies got fired from their jobs working for a drug rehabilitation outfit, and then they got denied unemployment benefits.  Are they constitutionally entitled to the benefits?

Lib:  Well, it does sound kind of like the state has burdened their religious practice, though the private outfit fired them, not the state.  But the state thinks it has interests in controlling drug use and interests in not giving financial support to people fired for good cause.  The generality of those interests makes it hard to think they're aiming at religion.  But I do wonder why they put peyote on the list of controlled substances.  Maybe they're trying to bash Native American religious practices?

Nice question.  But suppose it doesn't look like it.

Lib:  Well if free exercise works the way free speech and equal protection do, Oregon may do this without violating any constitutional rights.

That's what Justice Scalia argued in his excellent majority opinion for the Court in this case, Employment Division v. Smith.  His general rule was that burdens, standing alone, don't implicate free exercise — and I don't suppose anyone will accuse Justice Scalia of not caring about religion.  He added some curious wrinkles about unemployment benefits and hybrid rights, but my guess is that he had to do that to get five votes.

Many on the right have reviled Justice Scalia's opinion.  It did roll back an earlier jurisprudence that purported to pay attention to burdens as such.  And it inspired Congress to pass the Restoration of Freedom of Religion Act under its sec. 5 powers under the fourteenth amendment; the Court then struck down that act.  That debate continues to rage but isn't centrally at issue here.

Lib:  But Don, couldn't the Oregon state legislature permit the religious use of peyote if it wanted to?

Absolutely, and Justice Scalia emphasized that, too.  Legislatures have lots of discretion to carve out exemptions for people with religious interests.  In fact, Oregon has since amended their criminal statute to grant an affirmative defense to those using peyote in religious practices:  see ORS § 475.992.  So too Congress, in a limited and undoubtedly constitutional response to Smith, granted the same exemption from federal drug laws:  see 42 USCS § 1996a.  But our question is, what may or must courts do once the legislature has made its call?  And Oregon's call was to forbid peyote for everyone, not just Native Americans.

Lib:  Well, if a court's not willing to say that peyote is on the list of forbidden substances because the legislature wants to bash Native American religions, then this isn't a free exercise problem.  At least not if free exercise works the same way free speech and equal protection do.

I think they all work the same way.  But left and right pick and choose.  The left worries about laws that happen to burden racial minorities, and tends not to worry about laws that happen to burden religious practice.  The right doesn't worry about laws that happen to burden racial minorities, but does worry about laws that happen to burden religious practices.  It's hard to resist the sneaking suspicion that left and right are cooking their legal approaches to get the kinds of policy outcomes they favor.  And I think that's cheating.

Next up:  establishment clause worries, further ideological gyrations, and some arguments on why the law should take this general approach.  Lib, thanks, you're a saint.

Lib:  Actually, Don, I'm a raving atheist.


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Posted by: D.A. Ridgely

The right doesn't worry about laws that happen to burden racial minorities.

Does this refer in some "present perfect" sense to the right historically in the U.S. or to your sense of the contemporary right? If the latter, could you name an example or two of such indifference?

Posted by: D.A. Ridgely | Mar 25, 2005 7:54:37 AM

Posted by: Don Herzog

Oh, sorry, I don't mean my language to mean that the right doesn't care in general about the role law might play in making minorities worse off. I mean, in the context of this discussion, they don't think that burdens standing alone justify a court in finding an equal protection violation.

The broader question of "left" and "right" on race, the scare quotes now to make explicit how stylized this all is at this level, is far more complicated. There are background disputes, which I've written about here before, on equality of opportunity and its relation to equality of starting points: so for instance characteristic disputes about whether to fund public schools on local property tax bases. There are disputes on whether market solutions as a general matter are more promising than state solutions: and remember I'm the guy who'd love to see some jurisdictions give Kemp's enterprise zones a thorough trial. And on and on.

But I don't think you meant to suggest that Washington v. Davis has been met with firestorms of protest on the right. And I didn't mean to suggest any more than that here.

Everything in these little posts of mine is about what courts may and must do, not what legislatures may and must do.

Posted by: Don Herzog | Mar 25, 2005 9:06:03 AM

Posted by: D.A. Ridgely

Fair enough.

Posted by: D.A. Ridgely | Mar 25, 2005 9:12:47 AM

Posted by: dave

As an aside, I think I should say I find it very cute that you give your strawmen names.

Posted by: dave | Mar 25, 2005 12:37:10 PM

Posted by: Steve132

Race is by no means the best example of the Left's overreaching when it comes to an interpretation of the equal protection clause. For one thing, it is now established constitutional doctrine that racial classifications are subject to strict scrutiny. The 14th amendment was, as a matter of historical record, drafted to deal with issues of race, although it does not mention that concept explicitly. Better examples would be the whole line of privacy cases that culminated in Roe v. Wade and now, most conspicuously, the claim that a ban on same-sex marriage violates the equal protection clause.

The other comment I would make is that "disparate impact" cases are not always as clear-cut as suggested in the original post. I would agree that if a higher proportion of whites than blacks pass a certain examination that is not per se evidence of discrimination. Very few cases are brought simply on these grounds. The real debate centers around issues such as whether the examination is, in fact, an effective predictor of job performance, or whether certain other rules (e.g. residency requirements, age limits, anti-nepotism policies) may harm identifiable groups. A rule adopted for reasons that have nothing to do with discrimination may nevertheless have an adverse impact on certain groups.

Posted by: Steve132 | Mar 25, 2005 1:04:41 PM

Posted by: Don Herzog

dave, I plead guilty to making Lib my straight man. (At least so far.) But why a straw man?

Steve132, whether a classification triggers strict scrutiny or not crosscuts or is wholly independent of my interest here.

Posted by: Don Herzog | Mar 25, 2005 1:40:52 PM

Posted by: Christopher M

It's not just obvious, though, that the free exercise clause should work just equal protection. In general, there are (at least) two ways to protect a certain right. You can carve out a sphere of protected activity that the government just can't touch -- call this "liberty-protection." Or you can allow the government to regulate a certain type of conduct as much as it wants, as long as it does so neutrally. Call this "equality-protection."

Examples are easy. Abortion is liberty-protected. Speech is largely equality-protected, though as you mentioned, in some cases the "ample alternative channels" doctrine makes it look more like liberty-protection.

Now as to religion. The Establishment Clause has been interpreted as a kind of equality protection: the government must be neutral among religions, and between religion and non-religion. That seems right (putting aside debates about whether it makes sense, given the constitutional structure, to apply the EC to the states). But if that's true, what independent work is left for the Free Exercise clause to do? Church of the Lukumi and Smith could both come out just as they did based purely on the Establishment Clause.

It's at least arguable that the Free Exercise clause is liberty-protecting: it carves out some sphere of activity that the government cannot prohibit, or at least must have a compelling justification for prohibiting.

The problem, of course, is defining what that sphere could be in a world where almost anything is part of someone's religion (or if it's not, they can easily gin up a religion to suit the need).

Posted by: Christopher M | Mar 25, 2005 3:42:28 PM

Posted by: Col. Kurtz

"The Establishment Clause has been interpreted as a kind of equality protection: the government must be neutral among religions, and between religion and non-religion."

Tell that to all those who screech, "The Constitution guarantees freedom of religion, not freedom from religion!" everytime I suggest it'd be nice if monuments to G/gods I do not worship were not placed on property paid for with money seized from me under threat of violence.

No, seriously, tell that to them, cause I've tried and it doesn't seem to penetrate.

Posted by: Col. Kurtz | Mar 25, 2005 4:31:39 PM

Posted by: Untenured Republican


If you want to outlaw disparate impact in hiring, leave it to Title VII instead of the Fourteenth Amendment, where disparate impact analysis is perfectly OK. Even better, you can go after non-state-actors too.


Posted by: Untenured Republican | Mar 25, 2005 7:29:45 PM

Posted by: Christopher M

Col. Kurtz --

Well, to be fair, "neutrality" doesn't quite mean "freedom from religion." If you're putting up a display or a decoration that incorporates various important legal texts, and you've got the Constitution, the Code of Hammurabi, and the Magna Carta, well, then neutrality says you can also have the Ten Commandments if you want.

This doctrine makes perfect sense in the abstract. In the real world, governments who want to display the Commandments are going to toss in a few other texts as a sort of cover-up. Still, in my view the test should be perfectly objective. It doesn't matter if every member of the City Council announced that the real purpose of the display is to bring the heathen back to Jesus; if it's reasonably neutral on its face, that should be good enough.

Posted by: Christopher M | Mar 25, 2005 10:31:55 PM

Posted by: Christopher M

Also, the bit about equality between religion and nonreligion can get very tricky. Would it violate the Establishment Clause to impose Prohibition but allow an exception for communion wine? I'd like to say no. (Of course, the exception itself would have to be broad -- if non-Christian religions wanted to use wine in their ceremonies, they'd have to be allowed to. But then, what if they wanted to use hard liquor? No end of hard questions.)

Posted by: Christopher M | Mar 25, 2005 10:32:36 PM

Posted by: Untenured Republican


Why doesn't it violate the Establishment Clause to provide exemptions from otherwise generally applicable laws, to expressly benefit religion? For example, if I provide a tax exemption *because* something is a religious activity (the religious lobby has been hassling my legislature about how the tax is burdensome), is that not Establishment? No? Then why not just keep the tax general, but provide a government spending *subsidy* of equal value to the religious organization? All we have to do is make sure that appicants for the subsidy are *real* religions. We wouldn't want *everyone* applying, would we? Though personally, I think the Church of Don should get a subsidy. I think he's a righteous dude.

Posted by: Untenured Republican | Mar 25, 2005 11:47:50 PM

Posted by: Christopher M

Untenured --

On a strict neutrality principle, it does violate the Establishment Clause. I think such a reading of the First Amendment would probably be wrong, though, because it elevates the Establishment Clause at the cost of rending the Free Exercise Clause a nullity. They're both there; sometimes they're in tension, but the answer can't be to ignore one of them entirely. And it's hard for me not to read the F.E.C. as, at a minimum, permitting the government to except religious practices from otherwise generally applicable laws. In some way or another, the F.E.C. has pretty much got to be about "benefiting" or protecting religious activity (however broadly you want to define that) as against non-religious activity. If you disagree, what do you make of that Clause?

Posted by: Christopher M | Mar 26, 2005 7:04:39 PM

Posted by: RonZ

Chris -

You wrote "Would it violate the Establishment Clause to impose Prohibition but allow an exception for communion wine? I'd like to say no. (Of course, the exception itself would have to be broad -- if non-Christian religions wanted to use wine in their ceremonies, they'd have to be allowed to. But then, what if they wanted to use hard liquor? No end of hard questions.)" There's an obvious issue even with hard liquor.

Orthodox Jews believe that it is commanded on Purim to get drunk enough that one can't tell the difference between the wickedness of Haman, the villain in the Book of Esther, and the righteousness of the hero, Mordechai. (Let's leave alone, for the moment, whether Mordechai is actually the hero, OK?) Does your presumed exception allow for not just a bit of communal wine but for public drunkenness when the supposed Orthodox Jew is wandering home from his synagogue trashed? And does it require that they get drunk only on communal wine, or may they fulfill their commandment using scotch?

Carve-outs get awfully confusing. Moreover, the goal of prohibition is assuredly not to burden religion. Many think it is designed to help religion in general. It's obviously the case that the Establishment Clause suggests that the government can't benefit one religion over another, but general objectives are not clearly defined, either.

Posted by: RonZ | Mar 28, 2005 4:39:36 PM

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