Category: reason

I am happy to pass along this guest post from Professor Stephanie Barclay (Notre Dame). She writes about the history of the Free Exercise Clause, and how it affects Fulton v. City of Philadelphia.

From an originalist perspective, how should we think about protections for individual rights when government has expanded to regulate spheres of society that were dominated by private activity during the Founding-era? This question is relevant in many constitutional contexts, but it has particular salience for the meaning of Free Exercise protections in Fulton v. City of Philadelphia, a case the Supreme Court will hear oral argument in this week. This post discusses a historical example involving the Ursuline nuns in New Orleans that may shed light on this question. But first, it’s helpful to understand how this issue arises in Fulton.

One of the issues before the Supreme Court in Fulton is whether the government has the right to exclude a Catholic ministry from providing foster care services to vulnerable children. Catholic Social Services (CSS) has been engaged in providing foster care for over 200 years in Philadelphia. Some might say that CSS basically invented the practice in the City.

In the 1790s, Philadelphia was hit hard by the yellow fever epidemic, and countless children were suddenly left parentless. (As an interesting side note, the Supreme Court actually shut down one of its terms because of the severity of this outbreak.)

In response to this crisis, religious groups, including Catholics and Jews, established orphanages in the area. The first Catholic orphanage in Philadelphia—and one of the first orphanages in the United States—was founded in 1798. See Timothy A. Hacsi, Second Home: Orphan Asylums and Poor Families in America 18 (Harvard 1997). The Sisters of St. Joseph took over St. John’s Orphan Asylum in 1847, and by 1910 they were caring for 26,000 children in the City. This ministry included foster care, where the Catholic Children’s Bureau would find homes for children in need instead of just keeping them in an orphanage.

Over time, the government became more involved in foster care. Today, the government exercises exclusive control over the power to remove children from their homes and to decide which agencies get to provide core foster care services to families that take in foster children. For example, CSS’s representative testified in proceedings below that it would be “breaking the law” for that agency to provide foster care services to foster families without a contract. And the City acknowledged that the foster families currently relying on CSS must either “find a new agency” to work with, or stop fostering children.

This government control of foster care itself hasn’t necessarily been a problem, until just two years ago when the City sought to close CSS down unless it agreed to violate its religious beliefs and certify same-sex couples. No couple had ever actually asked for this service from CSS, but the City still wants a commitment in advance that CSS would be willing to violate its beliefs as a condition of being able to continue serving foster families in the City. Because CSS couldn’t agree to violate their religious beliefs about marriage, they now stand to lose the ability to continue their longstanding foster care ministry.

In a word, government has expanded to control an activity previously within the realm of private religious ministries. And now, through government’s monopoly power, religious groups are forced to choose between violating their beliefs and performing the ministry the government’s way or being kicked out altogether. Given that the baseline of a large welfare state didn’t exist at our country’s Founding, can history shed any light on the original meaning of the Constitution in this type of conflict?

The Founding-era historical example involving the Ursuline nuns seems to support the idea that religious ministries should retain important protections for their original sphere of freedom, even if government exerts control over new aspects of society. Beginning in 1727, Catholic nuns in New Orleans operated a convent that included a school for poor children. When the U.S. Government completed the Louisiana Purchase, the convent fell within the boundaries of the newly acquired territory. As a result, it could have easily been assumed that this property now fell to the ownership and control of the federal government. The nuns wrote a letter in 1804 seeking clarification about the future of their ministry. The nuns stated, “it is not therefore [the nuns’] own cause but that of the Public which they plead — it is the cause of the Orphan, of the helpless child of Want.”

Jefferson responded and assured the nuns that “the principles of the constitution” provided a “sure guarantee” that the property would be “preserved to you sacred and inviolate,” and that the convent “will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.” He then said that “whatever diversity of shade may appear in the religious opinions of our fellow citizens,” the “charitable objects of your institution . . . cannot fail to ensure it the patronage of the government it is under.”

Note that this was not just a pledge Jefferson was making magnanimously—he believed that the “principles of the constitution” required preserving this religious ministry, notwithstanding the recent government acquisition of the Louisiana territory. And he did not think that preserving the ministry meant forcing the nuns to run their ministry according to the government’s new rules. Rather, he noted that the ministry had a “sure guarantee” that they would operate according to its “own voluntary rules, without interference from the civil authority.”

Mark Storslee has written about how examples like this illustrate that the Establishment Clause does not prohibit religious ministries operating even in the context of government funding or property. And I agree. But one could potentially take a further lesson from this example. Specifically, one could argue that there were certain spheres of liberty the Founders understood that religious groups and institutions would be able to operate within free from government interference, notwithstanding government expansion. Or, at the very least, these ministries would receive thick constitutional protection within these spheres even as government exercised control over new realms.

The ministry of churches caring for orphans was widely recognized and appreciated during the early history of our country, and there is (to my knowledge) no Founding-era evidence that government could—or even tried to—interfere with such ministries. Given the expansion of the modern welfare state into these previously private spheres of religious activity, the burden should still remain on the government to justify that it has originalist/historical support for its modern intrusion, not the other way around.

So how would one operationalize this sort of original understanding into a doctrinal test? Two alternatives present themselves. First, to the extent that Employment Division v. Smith remains good law, perhaps certain spheres of liberty where government did not interfere with religious practice during the Founding period operate as an exception to Smith‘s deferential rule. The Fulton context of religious ministries to orphans seems like a prime candidate for this sort of exception. The Ursuline Nuns that Jefferson wrote to were also caring for destitute children, after all. (At least three other amicus briefs in Fulton discussed this history of religious organizations providing adoption and foster care services in our country. See here, here, and here.)

However, under this first approach, it would likely be fairly easy for religious organizations to argue that religious exemption conflicts are caused by government regulation that extends beyond what was understood as the accepted scope of government during the Founding era. This may be true both in terms of subject matter, but also in terms of volume. As former Attorney General Edwin Meese’s amicus brief notes, “Given the ever-increasing encroachment of the modern administrative state into daily life, a course-correction becomes  more  vital  to  preserve  the  Framers’  intent  that religious duties will take precedence over the demands  of  the  government.” In a similar vein, Keith Whittington has noted that the volume of statutes passed by legislatures at the Founding period was much lower than it is now. In fact, “the output of Congress” measured by the number of pages in the Statutes at Large “has far outstripped the judicial review activity of the Supreme Court.” Keith E. Whittington, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present 27 (2019). And the amount of policies and regulations passed by agencies dwarfs that ballooning legislative activity by Congress. Thus, higher numbers of judicially created religious exemptions would likely be necessary to even attempt to maintain the scope of religious freedom that was originally understood in the context of free exercise protections.

All of this points to a second alternative doctrinal test supported by the Ursuline nuns’ example: overrule Smith altogether and allow for a default rule of heightened scrutiny in religious exemption conflicts. Such a background norm is consistent with the idea that government should justify its ability to burden religious exercise in spheres of liberty government largely left uninhibited during the Founding period. And where government can point to a use of its power that actually advances an interest originally understood as one sufficient to limit religious exercise, such government regulation would likely satisfy strict scrutiny.

On the other hand, if the Court does not adopt at least one of these approaches, the risk is that government could obliterate the “promise of the free exercise of religion” simply through the reality of its never-ending expansion. All the government need do is license or exert control over a new activity, and then condition religious groups’ continued participation on their willingness to forfeit their religious beliefs and practices. Whatever the Free Exercise Clause meant, surely it could not have been that.

Stephanie Hall Barclay is an Associate Professor of Law at the Notre Dame Law School, where she also leads the Law School’s Religious Liberty Initiative. Elsewhere, she has written about other historical, normative, and doctrinal reasons that support overruling Smith.

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Today the Supreme Court will hear oral argument for the first time since the confirmation of Justice Amy Coney Barrett. In some respects, this may represent the start of the new Roberts Court, as distinguished from the early Roberts Court—what many called the “Kennedy Court” because of Justice Kennedy’s pivotal and decisive role in the Court’s jurisprudence during that period.

The Kennedy Court ended when Justice Anthony Kennedy was replaced by Justice Brett Kavanaugh. Yet even then the Court was closely divided, regularly producing 5-4 splits in which the justices did not align purely along ideological lines. Although the Chief Jsutice was seen as the median justice after Kennedy’s departure, every conservative justice joined the courts liberals to produce a majority at least once during the brief period between the confirmations of Justice Kavanaugh and Justice Barrett. Now it will take two conservative justices to produce a majority with the Court’s liberal wing. This will almost certainly result in a shift to the Right, but how much and in what manner are yet to be determined.

As a wise sage once said, “It’s tough to make predictions, especially about the future.” We can, however, say something about the past, and use recent experience as a benchmark against which to evaluate what comes ahead. With this in mind, I think it’s useful to clarify the record of the Roberts Court to date, so that we may accurately identify how the New Roberts Court’s behavior departs from recent trends, if it does.

While some commentators have described the Roberts Court as ultra-conservative, radical, or reactionary, it has, in fact, been a stare decisis court, and arguably the most restrained in decades. Up until now, the Court under Chief Justice Roberts has been more deferential to Congress and more respectful of precedent than any other post-WWII court.

As I detailed in this post from 2018, the Roberts Court overturns prior Court precedents at a significantly lower rate than did the Warren, Burger, and Rehnquist Courts, a pattern that continued up through this past term. There are important caveats to be made, including that not all precedents are created equal, and overtunring some is more important than overturning others. Still, the overall rate over a significant period of time is notable. If the Court begins to upend precedents at a significant rate, this will be a departure from how the Court has behaved since 2005.

Similarly, the Roberts Court has invalidated federal statutes, in whole or in part, at a lower rate than did the Warren, Burger, and Rehnquist Courts. Here the best reference is my co-blogger Keith Whittington’s award-winning book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. Here is what he finds:

Cases per annum invalidating federal statutes:

• Warren Court 2.57
• Burger Court 3.17
• Rehnquist Court 3.63
• Roberts Court 2.08

(See Table 7-1 at p. 238)

Maybe this is too many federal statutes to invalidate. Maybe it is too few. Maybe it depends on which laws are up for review. The point here is that—contrary to the claims of some commentators—the Roberts Court has given Congress a wider berth than has its predecessors and has been more reluctant to hold federal statutes unconstitutional than have prior courts. As with precedents, if the Court begins to invalidate federal laws at a more rapid rate, this will be a departure from what we have seen from the Roberts Court thus far.

It is important to underscore that the account I provide here is purely descriptive. This is what the Roberts Court has and has not done. There are some who think the Court should be systematically deferential and oriented  toward maintaining the status quo, but most have preferences about the underlying substance of the relevant decisions. Whether the Court was correct to declare a given statute unconstitutional or overturn a given precedent depends upon the particulars of the given case—and is a question upon which I suspect many readers and I would disagree (as will readers among themselves). So, too, with the decisions the Court will make in the years ahead.

What will the New Roberts Court bring? We will have to see. I suspect the newly constituted Court will conform to some expectations and confound others. It will almost certainly be more “conservative,” but what that means in particular cases or subject areas may well surprise. Much as the early Roberts Court was more restrained and status quo oriented than many might have suspected, the New Roberts Court may well turn out differently than many expect.

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When Randy and I were recording the videos for our book, we came across an unexpected problem: how do you pronounce the “v.” in the case name. There are two options. First, you could pronounce it as “versus.” Second you could pronounce it like the letter in the alphabet, “v.” Randy and I had never really considered the issue before, so we simply said whatever sounded right. When we were planning an Audible version of our book (stay tuned), we could not simply tell the narrator to do what he thought sounded right. There had to be some rule.

After some thought, I have settled on a rule that conforms with my general pronunciation approach. When the name of the first party is one syllable, I say “v.” When the name of the first part is more than one syllable, I say “v.”

Consider some famous cases where the first party is one syllable. With each of these cases, I would instinctively say “v” rather than “versus.”

• Prigg v. Pennsylvania (1842)
• Knox v. Lee (1871)
• Hans v. Louisiana (1890)
• Schenck v. United States (1919)
• Debs v. United States (1919)
• Pierce v. Society of Sisters (1925)
• Buck v. Bell (1927)
• Brown v. Board of Education (1954)
• Roe v. Wade (1973)
• Craig v. Boren (1976)
• Gratz v. Bollinger (2003)

To the contrary, for several of the companion cases, I would say “versus.” For example:

• Abrams v. United States (1919)
• Bolling v. Sharpe (1954)
• Grutter v. Bollinger (2003)

What do you think? Does my rule work for others?

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11/2/2010: Brown v. Entertainment Merchants Association argued.

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Just down the street from the Reason offices in D.C., protesters recently built a guillotine. No necks were harmed that night; it wasn’t fully functional. But they did it in front of Amazon founder Jeff Bezos’ house, and the message was clear: While we aren’t going to do violence to you personally right now, we want you to know that we think capitalist billionaires like you are so terrible that some violence may, in fact, be justified. Another iteration of the guillotine had popped up a couple of weeks earlier in front of the White House, with similar implications for the president and his allies.

The question, which has taken on increasing importance as Election Day draws near, is how seriously (or literally) to take such threats.

The best-case scenario is that what we are seeing in the streets is essentially LARPing. If you don’t know what LARPing is: Congratulations. I bet the parties you got invited to in high school were fun! It stands for “live action role playing,” and the most common manifestation is a small group of costumed nerds staging some form of simulated combat, often in a campus quadrangle or public park.

Like the guillotinesmiths of Kalorama, the lefty protesters of Seattle and Portland—dressed in activist goth chic and ostentatiously practicing maneuvers with shields—are looking to trigger disgust and panic in those who disagree with their aims or tactics, and boy is it working. The same is true of the Unite the Right marchers who turned up in Charlottesville three years ago and later in the Pacific Northwest to provoke fear and intimidate their opponents while wearing matching polo shirts and wielding tiki torches.

“So far, this revolutionary playacting has been more annoying than terrifying,” Cathy Young writes in this month’s cover story, an account of the events leading up to France’s Reign of Terror with an eye toward the parallels to the present day (page 18). “It’s about trolling, not killing, the enemy. But it still signals an embrace of bloodthirsty rhetoric—and of ideological homage to one of history’s bloodier leftist dictatorships.”

There are reasons to believe the situation in American cities could take a more deadly turn, however. For one thing, it did in Charlottesville, when counterprotester Heather Heyer was killed. And it already has in Portland, where Reason contributor Nancy Rommelmann has covered the monthslong conflict between the antifa “black bloc” and the various right-leaning factions that oppose it. The activists in Portland have been busy attempting, mostly without success, to set fire to various government buildings downtown. Failing that, they settle for dumpsters. They had their own guillotines there, of course, one of which conscripted a teddy bear to stand in for reviled Democratic Mayor Ted Wheeler.

But there have been repeated clashes, not only between the protesters and law enforcement but also between rival activist factions, including the now-infamous right-wing Proud Boys. At the end of August, those tensions culminated in the killing of Aaron “Jay” Danielson by a deeply troubled man who identified as antifa.

The actions of the shooter, writes Rommelmann, are “a symptom of what happens when a movement gets such a glow that it attracts people ready to take things to the next level. For most people, fatal violence causes an instinct to recoil, to take a step back and reconsider. But not for everyone.”

This is the very definition of a vicious cycle. As the less committed folks step back because they sense that things have gone too far, only the most hardcore remain in the field, ready to rumble. “That things will get worse before they get better seems inevitable,” writes Rommelmann. “A movement that justifies intimidation and violence moves in only one direction, and anyone who says they did not see this coming to the streets of Portland has not been paying attention.”

There are signs that ordinary people are becoming more likely to support this kind of violence, if not engage in it themselves. In October, a group of researchers published a disheartening set of survey responses in Politico. They found that 36 percent of Republicans and 33 percent of Democrats said it is at least “a little” justified for their side “to use violence in advancing political goals.” Those numbers are slightly higher if you specify the loss of an election as the trigger for violence.

The more extreme someone’s political views, the more likely they are to believe violence is justified to achieve them. Among those who identify as “very liberal,” 26 percent said there would be “a great deal” of justification for violence if the Democratic candidate loses the presidency. Among the “very conservative,” that figure is 16 percent if the Republican candidate loses.

These numbers are up significantly from June, but the trend begins much earlier. This is neither a left nor a right phenomenon, no matter how desperately each side would like that to be the case. No one “started it.” No one side is picking the fight. This is a change in views about political violence across the board.

The new survey builds on a longstanding body of work by two of the authors, Nathan P. Kalmoe and Lilliana Mason, who have also found that polarization seems to be directly connected to dehumanization, with 20 percent of Republicans and 15 percent of Democrats agreeing in 2018 that members of the other party “lack the traits to be considered fully human—they behave like animals.”

A 2019 report from the Carnegie Endowment for International Peace put a finer point on the ways in which this electoral cycle may be particularly ripe for conflict, declaring that “experimental evidence shows inducing expectations of electoral victory give strong partisans more confidence to endorse violence against their partisan opponents.”

Recall that one of this spring’s most outrageous instances of cancel culture at work was indirectly about the question of tolerance for political violence as well: A Civis Analytics researcher lost his job after tweeting out an academic study by Princeton’s Omar Wasow about how violent protesters may undermine the electoral goals of their allies. He was accused of “concern trolling” and “minimizing black grief and rage” and subsequently fired in what appeared to be a direct response to the tweet. Not only are people more willing to condone violence across the board, but at the extremes some are also less willing to even entertain talk about why such violence might be a bad idea.

There is one additional complicating factor here: The meaning of the word violence is in flux. Speech is increasingly described as violence. Sometimes silence is also violence, especially in conversations about race. In certain circles, conversely, it’s now up for debate whether property destruction counts as violence, with activists pushing back on the idea that the damage to homes and businesses in the wake of this summer’s Black Lives Matter protests should be taken into consideration at all.

It’s a mistake to conflate bad tweets with revolutionary violence, but it is worth pointing out that in the waning days of the election season, Bhaskar Sunkara, a co-founder of the aptly named Jacobin magazine, tweeted: “I think killing little Romanov children was justified. But it’s not surprising why these views are controversial given most people’s ethical and moral frameworks.”

Sunkara ultimately took down the tweet. But the thing he may have been most wrong about was the notion that most people’s moral and ethical frameworks can’t accommodate violence in the name of political change. Increasing numbers of Americans see those who disagree with them as subhuman and view politics as a worthy cause for violence, even if they’re not ready or willing to do violence themselves. For these new Jacobins, the romance of the guillotine persists.

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