This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”
This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith's challenge to the dominant academic narrative that the Supreme Court's mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment's original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of…
“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway
“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism. To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.
Recently, the Minnesota Supreme Court upheld the appeal of a man convicted and sentenced to a one-year prison term for having aided the suicides of two depressed people through advice and encouragement he had offered them over the Internet.
The grounds on which the appellant successfully challenged his conviction were that the statute under which he had been prosecuted and convicted — and which proscribed ‘encouraging, advising or assisting another in committing suicide’ — violated his First Amendment right to free speech.
There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.
Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity. It is much more hospitable to reinforcing a state-centered view of the world than a religious school.
A second point of comparison is the hostility of left-liberals to the rights of corporations.
Linda Greenhouse ‘s column yesterday and my post the day before are in agreement on one thing. As she puts it, “The McCutcheon decision is a powerful testament to the extent to which the free speech claim has, in the hands of the current court, become an engine of deregulation.” But she deplores the results. I applaud them.
My reasons for applause are simple: the First Amendment is an engine for the deregulation of political expression. That’s its essence. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Court has made clear for decades that speech is to be interpreted broadly to include all forms of expression, including burning a flag or dancing in the nude. Like most civil libertarians, Ms. Greenhouse is presumably fine with these decision. Is a contribution to a political candidate less a form of expression than those actions? In McCutcheon the Court is just applying neutral principles in applying strict scrutiny to government attempts to interfere with expression.
The First Amendment is a free, not equal speech provision. It is no respecter of persons. It does not matter that rich people are often engaged in this kind of expression or that it unpopular with some people, particularly the incumbents that passed the law limiting donations and may be unseated by challengers who receive too many of them.
The Supreme Court’s analysis in McCutcheon v. FEC, its recent campaign finance decision, is even more important than its result. The holding of the case was to strike down so-called aggregate limits on donations to federal candidates. Under the invalidated law there was a ceiling on total contributions of $48, 600 for candidates running for federal office and $74,000 for other political committees. After McCutcheon, candidates are still limited to donating $2, 600 to a candidate but can give to as many candidates as they choose.
But it is the reasoning, not only the result, that is crucial to protecting our liberty, because it portends further deregulation of p0litical expression in elections. From the very first sentence, Chief Justice Roberts makes clear that general First Amendment principles are at stake in the case. Throughout the opinion he refers to cases that have nothing to do with campaign finance regulation but famously protect individual expression against the majority will, like Cohen v. Virginia, the case that protected the ability of a protestor calling for an anatomical impossibility to be performed on the nation’s selective service system. For the Chief Justice, those who want to express themselves are the new dissidents who must be protected from the wrath of legislators egged on by majority passion (and their own interest in protecting their incumbency). People who want to participate in campaigns to support a message or a candidate are not different in kind from those who speak in a vulgar manner or a burn a flag. His is a frontal challenge left-liberals’ support for the regulation of political campaigns, showing that they exercise only high double standards in standing up for free speech rights only when it suits their long-term objectives.
Appealing to ordinary First Amendment principles is essential to winning the debate over campaign finance, because advocates of regulation cannot succeed unless they forsake the neutral principles that are free expression’s best guarantees.
Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:
Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.
Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.
Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony. While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:
Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. In a new essay titled “What Happens if Data is Speech,” published in the University of Pennsylvania Journal of Constitutional Law Online, I consider the next question in this emerging area of the law. What happens if data is speech? I approach this inquiry from three angles.
In Poland, according to an animal protection law, animals must be stunned with a stun-gun prior to slaughtering. The European Convention for the Protection of Animals for Slaughter permits EU member countries to exempt religious slaughter from the stunning requirement. However, the Polish Parliament voted against granting the exemption. However, such a slaughter would not satisfy the rules of Kosher, which proscribe a very specific manner to kill an animal in accordance with Jewish Law. As a result, it is effectively illegal to make kosher meat in Poland. Unsurprisingly, several slaughterhouses are violating the law, and doing it anyway.