Revisiting the Constitutionality of Prayer in School

To understand why this issue should be reconsidered in Constitutional law, we need to look no further than the Establishment Clause itself. It provides that “Congress shall make no law respecting an establishment of religion.”  When assessing Establishment Clause cases, one must not neglect to understand the history of the clause and the intent behind its incorporation into the Constitution. When early colonists settled on the shores of what is now the United States, their original mission was religious freedom and to escape the persecution imposed by the leadership of the Church of England. The Church of England was in fact the state’s sponsored religion and drew opposition from the various Protestant secs, Catholics and Jews that remained in England. It is, therefore, no surprise that an essential element of the First Amendment is the Establishment Clause and protection from state sponsored religion. This issue was clearly a priority for the framers as evidenced in its incorporation into the First Amendment.

It should be noted, however, that the modern interpretation of the Establishment Clause is not within the framework of the Constitution, nor arguably within the intent of the framers especially in regards to school prayer. Cases will be highlighted that focus on the evolution of the Supreme Court and U.S. Circuit court developments on the issue. We will break down major case law that has addressed this issue throughout the twentieth and twenty-first century and why this Supreme Court should carefully consider correcting the mistakes made by the past courts when adjudicating these claims.

Illinois ex rel. McCollum v. Board of Education (1948) and Everson v. Board of Education (1947)

First, its substantive origins trace back to the 1948 case Illinois ex rel. McCollum v. Board of Education[1]where the Supreme Court held that a school arrangement where students were allowed to attend religious instruction courses during the school day that were taught by private teachers and approved by parents was deemed unconstitutional. This, despite the fact that the private teachers were furnished by a religious council representing various faith traditions and subject to the oversight of the superintendent of schools. The students that did not want to participate were not compelled to participate and continued a full secular course load.

A central issue highlighted by the court was the use of school buildings supported by taxpayer funds to be a venue for public school students to receive religious education. The court considered this a violation of the Establishment Clause and cited to its prior decision Everson v. Board of Education[2].  Most specifically language from that decision provided:

Neither a state nor the Federal Government can set up a church. Neither can pass  laws which aid one  religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go to or to remain away from a church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance of non-attendance. No tax in any amount, large or small, can be levied to support any religious     activities or institutions, whatever they may be called, or whatever form they may adopt to teach or  practice religion.

There are several flaws with the reasoning utilized in Everson. First and foremost, the most important issue is in regards to a government sponsored church. As previously discussed, this goes to the heart of the First Amendment and the Establishment Clause. Recognizing a space for religion in the public education system is not the government taking an approach to establish a church such as the Church of England. Rather, it is providing an open space for religious dialogue and recognition of diverse faiths in society. It expands the understanding of students and increases their intellect while providing them with the opportunity to express their beliefs if they so choose. Second, in terms of taxing, the support of the school venue where the optional religious courses were held should have been viewed in a wholistic sense. The tax was not going towards the programming of a specific religious institution, it was simply supporting the venue where the exercise of the program was occurring in conjunction with other educational opportunities. The language used by the Court to set this precedent with an expansive review of the Establishment Clause was in clear error.

Engel v. Vitale (1962)

The next major case development regarding religion in a state educational context dealt specifically with school prayer in Engel v. Vitale[3]. In Engel, New York adopted a program of daily classroom prayers in public schools; the prayer in question was brief, denominationally neutral and its observance on the part of the students was voluntary. The Supreme Court held that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.

In reaching its holding, the Supreme Court stated that invoking the Establishment Clause does not depend on a showing of direct governmental compulsion and can be violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. Furthermore, the majority opinion repeatedly stated that when government support is behind a particular religious belief, there is indirect coercive pressure upon religious minorities to conform.

This case was the major development upon which much of the religious, education and government intertwined cases have since flowed from, however, throughout the opinion it neglects to properly interpret the original intent of the Establishment Clause.

To begin, it acknowledges that those who would eventually settle the American colonies fled England to obtain freedom from England’s established governmentally ordained and supported religion. This is a persuasive historical account to help us to understand how to interpret the Establishment Clause.

The Court, however, in its final points of the decision states, “The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say. . .”[4]

The Court over assessed the role of the First Amendment, most specifically, the Establishment Clause with this conclusion. A public school should be free to recognize the role of non-denominational prayer during the school day as a Constitutionally permitted practice that would serve as an asset to the moral compass of all students regardless of faith tradition. As an institution that enhances the growth of young people, this practice is not outside its proper role. Spiritual growth and academic growth can co-exist in a healthy manner as long as a specific tradition is not prioritized over another in a non-denominational, general format. If the government is not taking a position (i.e. The Church of England to the detriment of the other religious groups) there is no control or influence over prayer, it is simply providing an opportunity for prayer.

As discussed previously, the court also added that,

The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonsobserving individuals or not. . . [w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. It warns, the belief behind the Establishment Clause was, that a union of government and religion tends to destroy government and to degrade religion.[5]

This aspect of the Court’s decision seems to acknowledge the previously cited weak points to its Establishment Clause jurisprudence because it moves off the concept that the government needs to be behind an official religion and therefore requires direct government compulsion to be in violation of the Establishment Clause. Rather, it suggests an “indirect coercive pressure” meets the threshold because it creates an understanding of a prevailing officially approved religion.

The Court, however, fails to effectively persuade with this direction- there is no previously approved religion if non-denominational prayers are recited or if there are alternating religious leaders of various faith brought in to lead it. A priest leading prayer is not suggesting that Catholicism is the officially approved religion any more than a rabbi or imam leading prayer is suggestive that Judaism or Islam is the approved religion. If even for example, a Hindu or Buddhist leader was retained this also would not be deemed an endorsement based on the heterogeneous invitations to various faith leaders and non-denominational format of the prayer recitation.

Finally, a strong counter-point are the atheist entities that bring much of these suits. As discussed earlier, however, it should be noted that the Establishment Clause was created with the understanding that a form of religion should not be officially endorsed by the government such as the Church of England and state-run churches. Its purpose, however, was not to diminish religious recognition in its entirety from the lens of government, the focus was more on a specific church and its influence over the governing process of the nation. A student identifying as an atheist at any of the religious prayer reflections by any of the religious leaders does not have to accept the prayerful meditation, but should also not be penalized if failing to participate. For the Court to assume, however, that as a result of prayer being spoken, there is an indirect pressure enforced on the atheist student, it is undertaking a very subjective analysis on a clause of the Constitution that is very objective in nature. One cannot assume how individual atheists would react to the consideration of prayer.  It should also be noted that an additional issue to ponder is that the Constitution is silent on areligious claimants. A carve out for areligious claimants as it relates to the Establishment Clause could arguably require an amendment.

Santa Fe Independent School District v. Doe (2000)

In Santa Fe Independent School District v. Doe[6], the Supreme Court, in a 6-3 decision held that student led prayers at football games was unconstitutional because it was in violation of the Establishment Clause. The school district maintained a policy that non-denominational prayer consisting of an invocation and/or benediction could be presented by a senior student or student selected by members of the graduating class. The prayer was to be chosen by the students. The students were to vote on whether to have the prayer and if passed, the student representatives to deliver the prayer.

Justice Stevens in his majority opinion, relied on the Court’s precedent set in Lee v. Weisman[7] where the Court held that a rabbi could not recite a non-denominational prayer prepared by school officials at a graduation ceremony. In that opinion, Justice Kennedy stated that it was not the place of the government to prepare a prayer for a graduation ceremony even if it was non-denominational. He stated this could be deemed as coercion, in the sense that the Constitution “guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so.”

In Santa Fe, Justice Stevens stated that the majoritarian nature of the student body’s vote on prayer infringes on the voice of the students who voted in the minority to reject the prayer. This could be viewed as a form of coercion. It further alienates those in the audience that viewed themselves as nonadherents and sends a message that they are outsiders and disfavored within the political community.

He also highlighted that the district provided an opportunity for the potential prayer and “solemnization” of the event to go forward by allowing for the vote. In addition, he stated that the event in which the prayer could be recited was organized by a school sponsored function, thus the state has provided a venue for prayer to be recited. The public address system was also responsible for transmitting the message and when considering these points, he found the prayer in violation of the Establishment Clause.

These points, however, can be challenged. For example, in Chief Justice Rehnquist’s dissenting opinion[8] he wrote that this suit was brought before the student program was applied in practice. There was no guarantee that the speech by the student would be in violation of the Establishment Clause. He also noted that the concept of a majoritarian student election to (1) decide on if a speech will occur and (2) who the speaker will be on its face does not violate the Establishment Clause. The student campaigns are free to go in a direction they seem fit and the student body will react accordingly. Invalidating this process because of a “potential” violation is extending too far. The Court should be reserving judgment on the speech itself to assess if there was an undue Establishment violation. In addition, the Chief Justice was not persuaded by the majority’s opinion that the solemnization would in fact lead to the unconstitutional Establishment of coercive prayer. Solemnization and prayerful reflections can take many forms including the National Anthem before games. Finally, the Chief Justice argued that this was not a potential government endorsed speech because of its content coming from a private actor, thus is should not be subject to the same restrictions.

Overall, I believe Chief Justice Rehnquist made strong arguments that challenged the majority’s interpretation of an expansive view of the Establishment Clause in this context and considerations regarding Constitutionally permissive speech. I would have considered going further, however, and made clear to the majority that there should not be a focus on minority and suppressed views from the audience in attendance if there is text filled with prayerful references that are non-denominational. If there is to be any constraining, it should be on suits brought against an objectively non-denominational speech. While a government entity has no business coercing the masses to be specifically Catholics, Protestants, Jews, Muslims and other religious groups- it should not be restricted in its solemn reflection on a higher power and respectful thoughts accounting for these beliefs. The atheist entities that would conceivably be minority forces in this context may appreciate a moment of silent or other forms of reflection. It should be clear, however, that the goal was not to coerce them into belief, but as members of a school district that had voted for a permissive solemnization and reflective prayer, they are subject to the local ordinances. If they seek to reform the policy, they should look to advocate for it democratically. They are not being denied participation rights in their political community.

Freedom from Religion v. Chino Valley (Ninth Circuit) (2018)

Finally, a modern perspective assessing the direction of Establishment Clause jurisprudence in schools is the case, Freedom from Religion Foundation Inc. v. Chino Valley[9], a Ninth Circuit case in which the court ruled that religious invocations to start open portions of Board meetings were not within the legislative-prayer tradition that allows certain types of prayers to open legislative sessions. A persuasive factor the court considered was that school children attended the session and were more susceptible to religious influence compared to matured adults.

The Ninth Circuit relied on the Lemon Test from Lemon v. Kurtzman[10] to reach its conclusion. The three-pronged test finds a governmental action can violate the Establishment Clause unless it (1) has a secular legislative purpose; (2) does not have the primary effect of advancing or inhibiting religion and (3) does not foster excessive entanglement between government and religion.

The court found that the prayer sessions lacked a secular legislative purpose, thus failing at the first prong of Lemon. The court stated that the prayers commonly took place “before the groups of schoolchildren whose attendance is not truly voluntary and one whose relationship to school district officials including the Board, is not one of full parity.” The court distinguished with the Supreme Court precedent in Township of Greece[11] because there, the audience was mature adults with the freedom to leave the session and it was not acting as an extension of the school system’s public education experience. Here, the Board dealt with specific issues in education and the court found the risk was too great to students in attendance in that their belief systems would be unjustly influenced at such an age with pressures of complying with the Board’s potential religious educational mission.

The court also provided that it does not meet the complete religious diversity of the Chino Valley area with its failure to invite religious leaders outside of the mainstream and also the failure to consider those without religious belief to assist with the reflection.

Finally, the Ninth Circuit stated that an excessive government entanglement with religion existed with the prayer recited. The court found that there are many ways other than prayer to acknowledge religious diversity.  An example highlighted to solemnize a Board meeting included readings from those of various faiths and non-religious.

The points presented, however, are unpersuasive because the Lemon Test itself is flawed. It provides a framework that seeks to deemphasize religion in public life, in a manner not consistent with the original meaning of the Constitution. Strict separation is easily debated as an original intention of the founding generation.

As discussed earlier, traditionally students were provided with some form of biblical influence in their schoolwork and prayer existed in various legislative meeting functions. Furthermore, the effect of the primary advancement or inhibiting religion is also taken out of context when reviewing the history of the Establishment Clause. We can reflect on our prior discussion of the history of the Establishment Clause and its original meaning from the nation’s founding to suggest that religion does have a place in public life as long as the state is not specifically coercing one religion and having this unduly intertwined with government functions. We can consider Henry VIII establishing himself as the head of the Church of England and the government authoritarianism that flowed from it to the detriment to the other forms of Christianity and faith traditions passed down through the years.

Finally, the lack of specificity in the language “foster excessive entanglement between government and religions” also poses difficulties. This context is vague- to what extent is “excessive entanglement” and how can this be considered an objective standard? From the perspective of a living constitutionalist and liberal leaning judge, this phrase can serve as a catch-all to encompass many things outside of the original meaning of the Constitution on matters of religion and government. This standard leaves much to be desired and has been abused from the twentieth century to today. It has essentially become a tool to limit the influence of religion in society in an unconstitutional matter. The Supreme Court should consider re-evaluating the Lemon Test and its place in Constitutional law.

I also note that Judge Diarmuid O’Scannlain, senior judge on the Ninth Circuit, recently published an opinion[12] respecting the denial of an en banc hearing on the Ninth Circuit’s decision. In his opinion, however, he expressed deep reservations of the Ninth Circuit’s decision finding an Establishment Clause violation. He cited to several Supreme Court precedents such as Marsh v. Chambers[13] and Township of Greece v. Galloway to support the view legislative prayer is valid with the facts provided in this matter.

Judge O’Scannlain took special effort to highlight the facts that the clergy presenting the prayer were scheduled on a first-come, first-serve basis and were forbidden to come to consecutive meetings or more than three per year. General prayer was encouraged for the invocation and the district made clear that the prayer is not to be used for conversion goals or demeaning other faiths.  These go to the very heart of the Establishment Clause’s purpose of forbidding compulsion on the basis of faith from a state actor. The restrictions placed on the clergy and prayer invocations avoid conflicting with the Establishment Clause.

Judge O’Scannlain later cited case law discussing that the framers did not view legislative prayer as a violation of the First Amendment as legislative prayers to open Congress have occurred without interruption since the early Congress. He also challenged the original court’s opinion that considered the legislative prayer as an extension of the educational opportunities present in public school. By its very nature, the legislature has a different mission than the school system, its goals are to pass laws and organize governmental functions while the schools are tasked with educating. He also notes that it is faulty to consider that the mere voluntary presence of students at a legislative session would change the nature of the proceeding and re-categorize it as an educational mission.

In sum, on two layers we can consider the original decision of the panel in error. First, this should not have been categorized as a prayer in school case because it was a legislative meeting, not a school environment with the sole purpose of education. It would have to be assessed with guidance from Township of Greece which should be the controlling law and find no Establishment Clause violation. Second, even if we concede that this was an educational meet and thereby an extension of the public-school system, it would still not be in violation of the Establishment Clause. Various clergy could be scheduled that represented different faiths on first come, first serve basis and could at most be granted 3 invocations per year. Furthermore, the clergy were specifically told by the legislative assembly that it cannot be used as a platform for conversion and demeaning other than faiths and beliefs.

abc books chalk chalkboard

Photo by Pixabay on Pexels.com

Conclusion

Overall, with the new composition of the Supreme Court, it should take the opportunity to reassess religion and law jurisprudence, most notably the Establishment Clause as it relates to prayer in schools. The Supreme Court deeply erred in the twentieth century with its expansion of the Establishment Clause to severely restrict the influence of religion in public forums.

[1] 333 U.S. 203 (1948).

[2] 330 U.S. 1. (1947). Everson considered taxpayer support to students in a school district that reimbursed public and private school students who took public transportation to school. A major takeaway from this case was the incorporation of the First Amendment Establishment Clause against the states.

[3] 370 U.S. 421 (1962).

[4] Id. at 430.

[5] Id. at 431-32.

[6] 530 U.S. 290 (2000).

[7] 505 U.S. 577 (1992).

[8] 530 U.S. 290 (2000) (Rehnquist, J. dissenting).

[9] Freedom from Religion v. Chino Valley et al; No. 16-55425 (9th Cir. 2018).

[10]403 U.S. 602 (1971).

[11] 572 U.S. ___ (2014) In Township of Greece, the Supreme Court held in a 5-4 decision that the legislative prayer to open a session, should not have been considered a form of coercion. The majority emphasized that there was no evidence of demeaning other faiths and forcing conversion.

[12] Freedom from Religion v. Chino Valley et al; No. 16-55425 (opinion respecting denial of en banc) (9th Cir. 2018).

[13] 463 U.S. 783 In Marsh, the issue assessed was whether paying a legislature chaplain using taxpayer dollars violated the Establishment Clause. The Supreme Court found, in a 6-3 decision, that this practice was permissive in light of the historical tradition of legislative prayers since the First Continental Congress and First Congress.

A Brief Reflection on Judge Stephanos Bibas’ Presentation

The New Jersey Federalist Society Lawyers Chapter recently hosted Judge Stephanos Bibas of the U.S. Court of Appeals for the Third Circuit. Judge Bibas has been a federal judge for a little over a year and prior to that he was a distinguished legal scholar at the University of Pennsylvania School of Law. He also clerked on the Supreme Court for the recently retired Justice Anthony Kennedy. His scholarly writings focused on the area of criminal procedure. A native New Yorker, he graduated high school at the age of 15 and went on to attend Columbia University and Oxford University for his undergraduate and graduate studies in addition to Yale for law school.

The focus of Judge Bibas’ presentation was on statutory interpretation and appellate advocacy in the post-Scalia legal environment. He opened with elaborating on some of the more technical concepts in administrative law such as Chevron deference and Skidmore deference and the role of agencies. He briefly touched on the current debate in the courts and scholarly community of how much deference should be provided to agencies when crafting law.

Later, he transitioned to a broader concept on how members of the legal community, no matter the area of law or jurisdiction one practices in can apply modern methods of statutory interpretation to their cases to be effective appellate advocates. Judge Bibas

Judge Bibas encouraged attorneys to take the time to focus on the finer clauses of statutes and interpret their meaning by using a vast array of sources rather than simply the older method of an over-reliance on legislative history. Legislative history can have its weak points by the very nature of how bills and statutes are passed in legislative bodies. There is a lot of negotiation and tactics used in developing the law that do not make it into its final enactment. By starting our interpretation with the given text, it can limit the opportunities for confusion and misinterpretation. Although we should note that the original authors had an intent, we are not bound by their thoughts, rather we must look to the text.

As a means to support our textual interpretation when advocating before the court, Judge Bibas encouraged the use of dictionaries, scholarly material, prior case law, news clippings and other media from the time frame and historical documents that may provide meaning to how a certain textual provision should be interpreted. This sets what he calls a “battleground” for the judge and clerks to review in helping to formulate the court’s opinion. It will often be a helpful asset if a judge does not have a prior familiarity with the area of law or issues litigated before them. If an appellate advocate is able to set the playing field, there is a better chance the court will be receptive to his arguments. Judge Bibas also noted the importance of citing weaknesses and potential counter-points to main arguments and how this often gains the advocate credibility before the court.

Overall, I thoroughly enjoyed Judge Bibas’ presentation. As a young lawyer, it is helpful to be provided with the perspective offered by a federal judge to tailor and refine my advocacy skills as I work towards my career goals. In addition, statutory interpretation is an integral component to the practice of law and attorneys would do well by heeding his words and putting in the extra effort to focus more closely on the textual provisions and reputable sources in support of them when appearing before courts of any level.

Federalist Society Lawyer’s Convention 2018 Reflection

The annual Federalist Society Lawyer’s Convention was held this year from November 15 to November 17, 2018 in Washington, D.C. The topic was “Good Government Through Agency Accountability and Regulatory Transparency.”  I had the privilege of attending again this year and will share with you some thoughts. It is impossible to summarize and reflect on all the discussions, so I will share my favorite moments.

The weekend opened with a rousing address from Senator Mike Lee that focused on the reality of the political and legal landscape that we are currently facing that has bred such hostility from the left as culminated by the Brett Kavanaugh hearings. He also called for further government accountability for policy decisions and recognizing the importance of the separation of powers.

Here are highlights from some of the major panels that were presented:

Role of Agencies

In the panel, “What is Regulation?”, a notable highlight was a spirited debate that took place between Jon Michaels- professor at UCLA law and Philip Hamburger – professor at Columbia Law to discuss the appropriate level of regulation and oversight of agencies. Jon Michaels took an approach that embraces the role of agencies in our society and considered their strengths. While acknowledging that there can be difficulties, as a whole, Michaels is supportive of the agency process established and maintaining the APA. Professor Hamburger took a more absolutist approach to agencies and supports them being curtailed and challenged several aspects of their rule making process. There has been too much latitude given to an unelected branch of government which in turn unfairly minimizes the impact of public participation in the process. Several regulations that arise from the rule making process do have a significant impact on society- the public deserves more transparency and the agencies must be held accountable for their actions.

Stare Decisis

In the panel on stare decisis, moderated by Supreme Court finalist and Seventh Circuit Judge Amy Barrett and containing Neil Eggleston, Kannon Shanmugam and John Baker a lively panel discussion was presented on the future of stare decisis with the Supreme Court moving forward. Stare decisis is the legal philosophy in which past decisions by the Supreme Court are a central guiding point in present adjudications. It calls on the Supreme Court to first apply and obey past precedent when reaching its decisions in present matters. This philosophy emphasizes the power of the judiciary and common law, but is not always driven by Constitutional interpretation if the two conflict.  There was a notable exchange in which concern was expressed that the new 5-4 majority would be open to overturning wide-standing judicial precedent to the detriment of the nation. This, one of the panelists argued would be a raw exercise of judicial power. However, a question was presented in which this argument was challenged. “What if this new 5-4 decision overturned precedent and in doing so returned the power on an issue back to the states? Would this in fact then be a decentralization of power from the judiciary?” In a surprise to the audience, the panelist and the remainder of the panel declined to answer the question. The failure to address this challenge  speaks volumes about sentiment on this issue. There has not been an adequate resolution proposed that recognizes that the Constitution and precedent can be easily drawn into conflict. It would be appropriate to reconsider the influence of stare decisis when handling these issues especially with regards to matters that considered past state law at tension with current Supreme Court law that had absorbed power from the states.

Overall, there were some interesting points considered by the panel and questioners on stare decisis. Does applying stare decisis more consistently and concretely preserve the legitimacy of the judicial branch or when prior issues are reconsidered and opinions issued that are more in line with the Constitution, is this the true test of judicial legitimacy? I tend to fall into the latter camp, but I think it is fair to contemplate that the new Supreme Court will be more likely to reconsider prior questions than past generations of the Court.

Discrimination

Another interesting panel focused on discrimination against minorities, with the main focus being the recent case involving Harvard’s discrimination against Asian Americans in their admissions process. This panel was very informative and a first-hand account of this litigation was presented by Patrick Strawbridge, an attorney working on the case. He discussed the background and litigation process to date. In sum, Asian American students disproportionately have been impacted by the factors used by Harvard in their admissions process. While these students typically score higher in terms of academic performance and community service, their scores are typically held back when the personality factor is considered. There are questions regarding this extra factor and the reason for its inclusion among others. If this was not considered, Asian Americans would occupy a higher portion of the incoming class.

Mr. Strawbridge and fellow panelist Dr. Althea Nagai also discussed that trends and testing have indicated that many other schools in the nation have seen an influx of Asian American students in their incoming class yet Harvard’s statistical percentage of Asian American students has remained stagnant for many years. This affirmative action matter will likely make its way to the Supreme Court at some point within the next few years and may in fact challenge the present affirmative action case law. Time will tell if affirmative action is scaled back based on this development. Professor John Yoo of Berkley Law and Harvard graduate, offered that affirmative action does not correct the underlying problems that exist in society today. Instead of focusing its resources in affirmative action, the government should be putting more resources into K-12 education including vouchers and charter schools. If a stronger dedication to this level of education is promoted, it could avoid problems for students in the long-term that require affirmative action for some applicants to be viewed as competitive in the admissions process.

Judge Jeffrey Sutton of the 6th Circuit

Judge Sutton provided a very informative discussion on his thoughts on how we should re-contemplate federalism and the role of states in our nation’s governing system. Too often the focus is on the United States Supreme Court when addressing significant legal questions whereas states have addressed much of the questions in their own governing body and state constitutions. If we look to how various state constitutions considered specifically questions of individual liberty it could be a valuable asset in interpreting these matters on a federal scale. Judge Sutton   wrote a book, “51 Imperfect Solutions: States and the Making of American Constitutional Law” in which his discussion was based off. A more detailed and thorough review of the book will be the subject of a future post. One thing is certain, however, Judge Sutton raised some major issues with appreciation for state interpretive methods in his discussion. The United States Supreme Court would be wise to consider his points when assessing the next major cases involving individual liberties.

Debate on District Court Universal Injunctions

The 11th Annual Rosenkranz debate featured Professor John Harrison of University of Virginia School of Law and Neal Kayal, partner at Hogan Lovells who has clerked for Justice Stephen Breyer on the U.S. Supreme Court. They debated a very timely topic, “whether district courts have the authority to enter universal injunctions.” Professor Harrison took the view that they did not have this authority and issuing these injunctions is overbroad relief and outside the scope of their jurisdiction. Neal Kayal took the opposing position and argued while universal injunctions should be rare, they are warranted in complex cases such as the recent issues with immigration injunctions because it is an issue that impacts many and not confined to those initially named in the district matter before the judge. This topic will invoke further discussion as the Supreme Court begins to tackle the injunction decisions of the district courts.

Conclusion

Overall, the Federalist Society Lawyer’s Convention was very informative and it was a privilege to be able to attend and learn the various legal perspective from expert scholars, judges and lawyers at the forefront of tackling current Constitutional law issues. I would encourage attendance to students and anyone in current practice. Constitutional law issues are impacting us every day- healthy debate and intellectual discourse that challenge one to look further then the mainstream media and cable news headlines connects us with law and invites us to provide informative insight on these issues. Perhaps some of us will one day be at the forefront of these battles, but for right now, it is the time to learn and absorb knowledge.

A Faux Separation

In our nation, there are currently many debates raging on over the scope of religious freedom and how far it can extend into the public sphere.  This work argues that the modern societal interpretation of separation of church and state has proven to be a hinderance for those proponents of greater religious freedom.[2]  Simply stated, as separation reinterpretation spreads, religious freedom becomes more and more constrained. [3]  However, through tradition and transparency much of the conflict can be deescalated.[4]

Part I of this work will explore the separation debate in terms of its historical and legal advent coupled with modern commentary.  Part II will consider the impact of the separation on religious freedom and a respected position to address it.  Part III will conclude by providing a foundational proposal for legislatures to consider when enacting laws that implicate religious freedom.

One of the central principles promulgated by opponents to religious liberty is the Separation of Church and State.  Those in that lobby often find themselves referencing Thomas Jefferson’s letter to the Danbury Baptist Association in which he explained the importance of a “Wall of Separation between Church and State (Dreisbach 39).[5]”  Later, these words were cited by the Supreme Court in Everson v. Board of Education, one of the early cases that considered questions regarding conflicts between church and state. [6]  However, there is a plausible argument that the shaping of societal sentiment with an over- reliance on these words is misdirected and can have harmful consequences to a founding principle of our nation, the freedom of religion.

  1. The Evolution of Separation

The key to understanding this area of jurisprudence is in the past.  As Professor Philip Hamburger highlights in his book, the early Protestant communities in the United States found merit in the influence of religion in society.  Examples include their dedication to prayer in public forums such as appointment of chaplains.[7]  Protestant instruction and Bible reading were also viewed as core values in public schools.[8]  Additionally, laws with respect to Sunday as the Lord’s day were also considered in the culture.[9]  A main critique of religion arose when the appropriate role of ministers in the community was considered with respect to political influence.[10] The emergence of Catholics in the 1800s also were deemed to have posed a threat to the society by the Protestant citizenry because of the Catholics’ proximity to the Pope.[11]  Finally, another key factor in dispute was the impact of taxing churches on an individual basis and taxes from the citizenry to support them.[12]

In his review of Professor Hamburger’s work, “The Politics of Separation: Review of Philip Hamburger’s Separation of Church and State”, Douglas Smith reached a similar conclusion, recognizing that, “according to Professor Hamburger, this movement which began in the nineteenth century and was motivated in part by anti-Catholic bias, ultimately resulted in a fundamental reconceptualization of constitutional norms regarding religion.”[13]  The commentary of Separation was initially posed with a targeted purpose to deter ministers from preaching on political policy,  not a societal divorce entirely from religion.[14]  Jefferson’s perspective found itself going against the majoritarian view of the day and questions remain as to the true context of his words.[15]

Once this historical account rooted in discrimination is considered one must ask whether this origin should be dismissed as a necessary evil to reach a just end or rather a hollow pillar that is incapable of upholding a philosophy with several vulnerabilities.   It is very difficult for the supporters of a strict separation to overcome this hurdle.  Arguably, if the platform is embraced, then the heritage is carried into the modern day because those that recognize religious influence as a permanent element in society are attacked or marginalized in various ways.

However, Robert D. Goldstein challenged the premise that the account of anti-Catholic discrimination has resulted in the Wall of Separation in his work, “The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination.”[16]  Here, Goldstein provides some justification as to why the early Protestant communities in this nation feared the influx of Catholic immigrants and their influence. He stated:

“Linking anti-Catholic attitudes with the origins of the Wall of Separation often confuses bigotry against persons identified as Catholic with legitimate political objections to the Roman Catholic Church, established by state and empire for over a millennium. In particular, the claim of bigotry ignores the Church’s anti-democratic and anti-liberal political principles  embraced in response to the modernizing world from 1789 until Vatican II. Some of these deeply held objections to the Church are the wages of its establishment.”[17]

Goldstein finds that the innate establishment structure of the Catholic Church was a viable threat to the anti-Establishment principles upon which the nation was founded. It was the resistance on this front, rather than specific discrimination towards Catholics as individuals, that constituted the tensions between the Protestant and Catholic communities.  Specific examples presented by Goldstein include the influence the Pope and priests had over congregations.[18]  As a result of this structure, the early communities may have questioned whether a Catholic could put the nation over the church hierarchy.

If one accepts Goldstein’s account as a viable interpretation concerning the origins of Separation in our society, it still does not address the current problematic climate surrounding the evolution of the Separation commentary. Faith communities and symbols of faith have now been endangered on a broader scale. The Catholic establishment that was once considered the threat has now become the Christian establishment that endangers our society with its influence.

In one recent example, the Fourth Circuit Court of Appeals in – American Humanist Assoc. v. Maryland-National Capital Park and Planning Commission mandated that a WWI cross that had been erected in 1928 to commemorate fallen veterans be taken down because it constituted an endorsement of religion. [19]  This decision reflects a troubling trend. Courts among the highest levels are still persuaded by a strict separation of church and state.  This doctrine has extended beyond targeting symbols for active religious practice such as the Christmas Crèche scene to symbols that are religious, but more serve as a function to memorialize such as the veteran cross presented here. This debate has now evolved from minimizing the influence of a specific faith in an interfaith conflict to minimizing faith in general. The cross is a symbol for all Christian denominations, thus Christianity in the broadest sense has come under attack. It could be fair to argue that religion as a concept is experiencing discrimination in the modern age. It should be noted that this case is now scheduled to be heard before the court during its 2018-2019 term.

II              Confronting the Impact of an Environment of Separation

With the Separation commentary still churning in the modern day among the highest levels of the judiciary, there is even greater difficulty for faith communities to rely on their enumerated religious rights because the very concept has become hollowed. There have been more cases emerging that challenge an individual’s faith traditions when those traditions draw conflict in the public realm.

In the modern era, the debate has raged on in cases such as Christian Legal Society v. Martinez[20], Township of Greece v. Galloway[21], Burwell v. Hobby Lobby Stores[22], Trinity Lutheran v. Comer[23] and  Masterpiece Bakeshop v. Colorado Civil Rights Commission.[24]  Although the Supreme Court found in favor of petitioner’s claim based on religion liberty interests in some of these cases, there are valid grounds for skepticism for the future.[25]  The clash of fundamental rights, between pre-existing and constructed can prove to be problematic in future jurisprudence.  A pre-existing fundamental right such as the freedom of religion is enumerated in the First Amendment of the Constitution, whereas a newly constructed fundamental right such as the right to marriage is read into the Constitution by the Supreme Court.  In this context, marriage was viewed as fundamental under the Due Process Clause of the 14th Amendment.  It should be noted that marriage is not enumerated or clearly stated within the text of the Constitution, but rather it relies on the Due Process Clause to give it meaning. [26]  We must then decide if the right rooted in the text of the Constitution should take precedence over the unenumerated right.  This new conflict poses the question of where these communities can now turn to within the legal realm in defense of their rights because of the expanded framework of assessment.

Professor Marc DeGirolami proposes in his book, The Tragedy of Religious Freedom[27] that the judiciary is best equipped to handles these matters and preserve religious freedom as a foundational principle of this nation when embracing a “tragic historic” method to adjudication by considering the force of social history and legal precedent.[28]  He considers reliance on societal history and tradition a central framework to help us define religious freedom and its scope.  When looking at these assertions there are a couple points to consider.

First, it is a meritorious assertion to identify judges as holding responsibility to preserve the understanding of religious freedom in American law- acting as gatekeepers, in effect However, in the modern day with a rise of judicial activism as discussed above this concept poses complications, one must question if they will be consistent in embracing the force of the past.  The late great U.S. Supreme Court Justice Antonin Scalia described this method of interpretation as being under the umbrella of “The Living Constitution, a body of law that (unlike normal statutes, grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and find that ‘changing law.’”[29]  From the perspective of the judges inspired by Living Constitutionalism it is their duty to preserve the structure of sound laws and society and will use the Constitution to help them reach their goal. The difference is, this type of interpretive style tempts the judge to consider biases before recognizing the provided legal context. The Constitutionalist perspective in contrast, considers the Constitution to be the forefront of the analysis.

Second, the reliance on societal history and tradition when adjudicating the complexities of religious freedom cases is an optimal method to sustain the importance of religious freedom in our society today.  However, Professor DeGirolami does concede that there tends to be conflict within these disputes that allow the adjudication to pose difficulties:

The values of religious liberty conflict with other values either internal or external to them, so that a  decision must be made in favor of some and against others. The values of religious liberty conflict with others that are constitutive of the particular sociocultural conditions.[30]

Once it is acknowledged that a conflict is present, the question remains as to the proper method to remedy it and assessing the duty of the people who will experience the effect of the conflict on both sides of the dispute.

There are a few ways to address the issue.  For example, Judge William Pryor of the Court of Appeals for the Eleventh Circuit stated in his work Christian Duty and the Rule of Law:

“If the government commands a citizen to violate a Christian duty or moral obligation,as Peter’s duty to preach, then the citizen, like Peter, is obliged to disobey the government.This obligation follows from the lesson of Jesus that we are to render unto God what belongs to God. We have no obligation to render unto the government an obligation that belongs to God.”[31]

This approach emphasizes the importance of the religious believer’s conscience when drawn into conflict with secular forces that threaten the faith obligation.  Judge Pryor’s focus on the religious believer has proven to be a very timely topic in the modern day with the advent of the Masterpiece Bakeshop litigation at the Supreme Court.[32]  If one accepts Pryor’s position, the issue than becomes what defines the religious activity.

For example, Helen Alvare` of the Antonin Scalia Law School at George Mason Law school offers in her work, Religious Freedom Versus Sexual Expression: A Guide:

Catholics believe that marriage is intended to offer a glimpse of God’s self as Trinity—Father, Son, and Holy Spirit–wherein three persons are united in an interpenetrating unity of endless love, and the Father and the Son send forth the Holy Spirit. This is reflected in the marital union of the man and the woman, and the fact that this union is the unique locus of new human life.[33]

She directs us back to Christian doctrine and how the concept of marriage as a unity between one man and one woman can be considered an integral component of exercising one’s faith.  It leads to new human life being produced that is in the image and likeness of God.[34]  If this premise is understood in the context of a healthy pro-creative relationship, it is difficult to categorize as radical, even to those without a strong background in religious tradition.

In contrast, there is also a plausible argument to be made that assuming this aspect of the faith is important to the believer, a question still remains as to how this belief should have an impact on a publicly manifested commercial entity. Audrey Uhland provides a unique perspective in the work, The Business of Expression: A Commercial, Constitutional, and Historical Evaluation of the Line Between the First Amendment and Antidiscrimination Laws that draw a distinction in a business providing a ready-made cake versus a custom-made cake:

“If a gay couple were refused the ability to purchase a ready-made cake to serve at their wedding, the bakery would be in violation of the anti-discrimination laws–even if that cake included a signature marking of the business that would be displayed at the event. But if the bakery offered the possibility of a custom cake with a unique message, it would be within its rights to refuse to create one that portrayed a message that it disagreed with.”[35]

This distinction makes note of the importance of how the expression is channeled. If the cake was pre-prepared it has already entered the stream of commerce and a denial would be an anti-discrimination violation. However, the concept of customization broadens the freedom of the creator of the product and provides the necessary platform to defend against drawing the faith into conflict. A customized product enters the stream of commerce upon completion based on the customer’s inquiry.

This theory may pose an opportunity to test Professor DeGirolami’s view on how religious freedom should be assessed. The example posed by Uhland is very fact–specific in terms of the ready-made vs. customization dynamic. There may be difficulties in uncovering the rightful intent of the baker through the marketing of his product. Some questions to consider: Was a wedding cake product pre-made in the context of a traditional marriage or has that cake underwent a consistent customization process as well? What exactly defines the customization process at issue and how will it be governed? Perhaps with these difficult factual questions posed, the judge may in fact be in the advantageous position to evaluate tradition rather than a court of modern public opinion. Society may fail to assess the major factual issues at place here and could find itself passing poorly written statutes in response. The community may be inspired more by unchanneled emotional egalitarian desires and less by a rigid structure of historical practice and precedent found within U.S.  law that considers in large part, the importance of religious freedom.

Justice Neil Gorsuch, in Trinity Lutheran v. Comer[36] acknowledges in his concurrence the limits of government compulsion against people of faith and stated, “Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion.”[37]  The facts in Trinity revolved around a religious school that brought suit because it felt that it was unfairly being discriminated against by the state in being denied public grants to support replacing the gravel on its school playground with rubber. Justice Gorsuch, a critic of lines drawn between what he calls “religious status and religious use,” proceeded to question this application if the judiciary looks to draw a distinction, “Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?” [38]  He finds that this does not matter because it still constitutes a free exercise of faith.[39]

Justice Gorsuch’s opinion considers an example where a religious conflict in the public realm is resolved in favor of the religious interest. When applied to the bakery facts, it would then be reasonable to conclude that the founding of the commercial entity on a religious basis or actions to follow the faith tradition in performing services when the entity is established should not alter the outcome of the religious matter at issue. There is a viable free exercise argument on both grounds.

Professor DeGirolami references Wisconsin v. Yoder[40] to assess the constitutional tradition adjudicating free exercise claims and the complexities these claims pose.  In this case the question revolved around the government forcing Amish children to attend public or private school at a certain age. This violated the lifestyle of Amish community and was a clash between faith and external societal expectations. Ultimately, the Supreme Court found in favor of the Amish and did not require them to follow the mandated school attendance statute.[41]  The Court relied on the tradition of the Amish to continue the process of education in the vocational context overseen by parental influence and how this should not be considered a detriment to society, but rather a productive contribution.[42]

Professor DeGirolami finds that it is unrealistic for there to be a common script to address all conflicts arising from religious freedom:

“[T]here is a complex of conflicting and incommensurable values-an interminable clash-that swirls around the idea of religious liberty and that will take very different shape and carry different inflections depending on the particulars of claims being asserted.”[43]

The perspective of the religious individual or community does not always harmonize with the government or societal forces at play. Despite the Supreme Court finding in favor here, this does not guarantee an absolute right for the faith-based party to succeed. Parentage and schooling may not be looked at from the same lens as bakeries and weddings. While the dilemma may not be possible to entirely solve considering the varying facts and ideology of the judges comprising the respective court, it is possible to find ways to reduce the amount of conflicts to avoid these difficult questions.  The faith-based pillars of American law and the heterogeneous perspectives on religion can both be considered in a system based in transparency.

Transparency acting as Mediator to Conflict

As has been established, the gradual evolution of “Separation” sentiment in America has led to a societal reluctance in embracing the merits of religious freedom.  A position that Professor DeGirolami presented considered the judiciary as the consistent presence best equipped to regulate the emerging conflicts in which religious freedom has become entangled in the modern day.  The more society drifts from the appreciation of the faith structures in constitutional law, the higher the probability that there will be a further hollowing through legislative enactment and other means.

While the judiciary may be imperfect in some respects its mandate is to exercise judgment authority over constitutional matters as Hamilton had envisioned in Federalist 78.[44]  It possesses the ability to slow the weathering process, if not bring it to an end if Constitutionalists begin to see their numbers increase on the federal benches.

However, this does not entirely solve the problem which is the persistent litigation brought against people of faith because of their conscious decisions formed by a moral compass. It would be optimal to have some of these conflicts not even begin if sound laws were passed that consider the interests of faith in the business context.  There needs to be room for compromise between the broader societal expectations of ever-evolving views on faith and those that continue to hold their specific faith based traditions consistent in the modern day.  Ross Douthat of the New York Times warns that the republic is threatened when society resorts to bitter partisan conflicts and fails to work towards meaningful solutions to bridge the gap in charged ideological conflicts.  Civility should be a central goal to maintain a sense of stability among the communities when brokering solutions.[45]

Legislation that focuses on greater transparency of the interests that are parties to this conflict may prove effective to address these problems.  It is a way to mediate conflict and could lead to less divisiveness and litigation that will further alienate people against one another.  Perhaps small-business owners should be allowed to openly identify as a faith-based mission entity upon registration via incorporation of a published statement that is readily accessible.  The registration process with the respective locality might allow for a tangible identifier that would be legally binding.  Considerations may include a stamp in the window as a noticeable identifier similar to the grading system found outside New York restaurants.

One may contend that perhaps to compromise with the exemption, there may need to be a referral system included that requires the opting out owner to gather a list of alternative bakeshops to provide to the customer who seeks to purchase the gay wedding cake.  However, this may result in a troubling path because the argument of complicity would return as was the case in the Little Sisters of the Poor litigation.[46]

Lawsuits would be prohibited on grounds that concern established faith traditions practiced by the business if it followed protocol and clearly identified its mission for the public sphere.  Those that do not find themselves religious or have lifestyles in conflict with the belief system would not be permitted to burden the religious small-business with the controversial service request, but rather be encouraged to make the request to an entity that did not register with a religious mission.  If an entity did not register, it would be subject to lawsuits for failing to provide the service.  This would also have an economic effect and open up economic opportunities for diverse groups of small business owners.[47]

While this modest proposal is foundational in nature, if the law began to reflect some of the concepts articulated in it, there would be less conflicts while more diverse interests would be met.

Conclusion

Overall, the strict separation argument that was considered at earlier points in the history of the nation has arisen in stronger forms in the modern day.  This has been detrimental to acceptance of religious freedom and those that remain faithful to established faith traditions. However, if the nation reflects on its traditional embrace of religion and begins to consider transparency in enacting legislative solutions for this pluralistic society, less divisive clashes will be present.  Indeed, we may even progress to a Post-Separation time period.

[1] Attorney and St. John’s Law Graduate 2017

[2] Philip A. Hamburger, Separation of Church and State (2002). Professor Philip A. Hamburger of Columbia Law School provides an in-depth historical analysis of the roots of the Separation of Church and State doctrine in his work.

[3] In modern American society, there has been consistent anti-religious sentiment when clashes arise in the public sphere and the concept of the value of faith itself is questioned. This is seen in the movement to remove faith based practices, beliefs and symbols from the public sphere. Often, this is done in the name of egalitarian principles and the desire to not elevate faith to a position of high value. In recent years, there has been an evolution from symbolism such as the Ten Commandments to more conscience-based interests such as small business owners.

[4] Marc o. degirolami, The Tragedy of Religious Freedom (2013). Professor Marc O. DeGirolami provides a compelling case for Tradition in adjudicating religious freedom in his work.

[5]  Daniel L. Dreisbach, “Sowing Useful Truths and Principles: The Danbury Baptists, Thomas Jefferson, and the Wall of Separation” 39 J of Church & St. 455, 468 (1997).

[6]Everson v Bd. of Ed. of Ewing Tp., 330 U.S. 1 (1947).

[7] Hamburger, supra note 2, at 12-13.

[8] Id. at 220.

[9] Id. at 200.

[10] Id. at 24, 112.

[11] Id. at 10.

[12] Degirolami, supra note 4, at 196—97.

[13] Douglas G. Smith, “The Politics of Separation: Review of Philip Hamburger’s Separation of Church and State”, 36 UC Davis L Rev 967, 978 (2003).

[14] Hamburger, supra note 2, at 111.

[15] Id. at 11, 163.

[16] Robert D. Goldstein, “The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination), 13 Cardozo Pub L Pol’y & Ethics J 173 (2014).

[17] Id. at 200.

[18] Id. at 201, “Furthermore, specifically anti-Papist and anti-clerical rhetoric (in America and more so in Europe) is attributable not primarily to ethnic prejudice, as some try to suggest, but to religious differences that go to Protestant core beliefs, rejecting the Pope’s and priestly claims of authority over daily life and intercessional authority.”

[19] Am. Humanist Assn. v Maryland-Natl. Capital Park and Planning Commn., 874 F3d 195, 200 (CA 4 2017).

[20]  561 U.S. 661 (2010). (Upholding a First Amendment challenge to a law school’s “All-Comers” policy that required school organizations to accept all students regardless of their status or beliefs).

[21] 134 S. Ct. 1811 (2014). (Holding that a town’s practice of opening legislative sessions with a prayer did not violate the Establishment Clause).

[22] 134 S. Ct. 2751 (2014). (Holding closely-held corporations were not required to provide contraception in accordance with the Affordable Care Act because it substantially burdened religion and was not the least restrict means of serving a compelling government interest).

[23] 137 S. Ct. 2012 (2017). (Holding the Missouri Department of Natural Resources violated the Free Exercise Clause of First Amendment when it decided that the church was ineligible to participate in a program that offered reimbursement grants to private schools for playground tire).

[24]199 L. Ed. 2d 276 | 86 U.S.L.W. 3215 | 2017 WL 4869142. (Court held in favor of barker, relying on reasoning that Colorado Commission showed unfair bias against religion. Note that the majority opinion largely ignored the merits of cake baking and service to same-sex customer

).

[25] I recommend listening to the commentary offered by Professor Marc O. DeGirolami and Professor Mark Movsesian in their podcast on the Masterpiece case.  https://lawandreligionforum.org/2017/12/12/podcast-on-masterpiece-cakeshop-oral-argument/

[26] Here I reference religion as pre-existing in free-exercise and establishment clause while the issue of marriage has recently been constructed as a fundamental right in Obergefell v. Hodges 135 S. Ct. 2584 (2015). The due process clause contains the interest of liberty and this is the clause in which marriage has been read to be incorporated under.

[27] Degirolami, supra note 4, at 184—85.

[28] Id. at 8.

[29] Antonin Scalia, A Matter of Interpretation 39 (1997).

[30] Degirolami, supra note 4, at 62.

[31] William H. Pryor Jr.  Christian Duty and the Rule of Law, 34 Cumb. L. Rev. 1, 6 (2003/2004).

[32] 199 L. Ed. 2d 276 | 86 U.S.L.W. 3215 | 2017 WL 4869142, The outcome of the Masterpiece Bakeshop case at the  Supreme Court will have major societal implications and may further cloud the definition of church and state relations in the American legal context.

[33] Helen M. Alvaré, Religious Freedom Versus Sexual Expression: A Guide, 30 JL & Religion 475, 488 (2015).

[34] Id.

[35]Audrey Uhland, The Business of Expression: A Commercial, Constitutional, and Historical Evaluation of the Line Between the First Amendment and Antidiscrimination Laws, 26 S Cal Interdisc -LJ 405, 420–21 (2017).

[36]137 S. Ct. 2012 (2017).

[37] Id. at 2026.

[38] Id. at 2025.

[39] Id. at 2026.  Justice Gorsuch writes “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

[40] 406 U.S. 205 (1971).

[41] Id. at 234.

[42] Id. at 224–25.

[43] Degirolami, supra note 4, at 72.

[44]THE FEDERALIST 78  (Hamilton). Alexander Hamilton provided his vision for the role of the judiciary, “neither force nor will but merely judgment.”

[45] Ross Douthat, The Baker and the Empire, The New York Times (December 9, 2017), https://www.nytimes.com/2017/12/09/opinion/masterpiece-cakeshop-supreme-court.html

[46] 578 U.S. ___ (2016). In this case, the Little Sisters of the Poor sought an exemption as a non-church religious entity from having to facilitate access to birth control in violation of their faith. Ultimately, the Supreme Court remanded this case for the circuit courts to resolve the question. Similarly, in the bakeshop proposal, a referral would be the substance of much debate and if a referral can be considered being complicit in the activity the court would again be struggling with this question.

[47] The “Big Gay Ice Cream Shop” chain in New York City and Philadelphia is a good example of small-business diversity ownership.

The Left Fears the Constitution

The hearing that Judge Kavanaugh had to go through with Dr. Ford’s allegations was a truly dark moment in our nation’s history. The left has shown they will stop at nothing for power, even if it means destroying a person’s reputation with uncorroborated allegations. Instead of going into the graphic details of what occurred, this post will highlight what really has motivated the left to act in such a way against an eminently qualified jurist in Judge Kavanaugh. This hearing was simply part of a larger plan to resist the Constitution at all costs. The left realizes that this document is what stands in between them and unlimited and unregulated power to fundamentally change American society for the worse.

Constitutionalism jurisprudence does not adhere to public sentiment and the changing attitudes of society, rather it adheres first and foremost to the Constitution itself. While a progressive jurist such as Sonia Sotomayor will be persuaded considerably by the needs of society and tend to embrace a legislative role for the Court, one in the Clarence Thomas mold will not, but rather concentrate their jurisprudential philosophy on the text of the Constitution. There lies the heart of the progressive dilemma. Notable influential cases on society such as Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey and Obergefell v. Hodges all had the common elements of replacing the valid voice of the people that had been applied through their legislatures while assessing the creation of new rights with the voice of the Supreme Court. These cases are just some examples of invalid judicial interference in democracy. The Constitution as properly applied did not support these outcomes yet they occurred because the Court at those moments was too willing to buckle under pressure from outside forces rather than focus on the Constitution itself. Focusing on the Constitution itself includes what is provided within it and what it does not have in it. Part of the duty of a judge is to not invent rights by stretching and vaguely interpreting terms to just be aligned with supposed proper societal sentiment. This is a disservice to the nation and rule of law and is what the radical left thrives on.

The left fears that another Constitutionalist on the Court will give it the 5-4 majority it needs to return the Court back to Constitutionalism and text driven strict interpretation to derail the legislative influence of the Supreme Court. Most importantly judges in the Kavanaugh mold believe in judicial restraint and will be reluctant to be a rubber stamp for the supposed changing attitudes of society that should be addressed in the legislature. The left realizes, however, that it does not often have the majority of the people united behind them in their initiatives to breed success at the legislative level. That is why they have turned to the Supreme Court time and time again to rescues these initiatives. See the invented doctrine of substantive due process that has bloody origins from the Dred Scott case- when slaves were viewed as property and not people.

The left also recognizes that a future democrat’s presidency will be significantly constrained when dealing with a deeply Constitutionalist court. It is no coincidence that Robert Bork, Clarence Thomas and now Judge Kavanaugh were so strongly opposed. Judge Kavanaugh has been through the most difficult of these processes with the relentless attacks on his entire life and his family by a radical leftist agenda. It no longer is confined to his body of legal work, but as he had said in his own words they have carried out a “search and destroy” mission. Find the Constitutionalist and destroy him or her so they cannot be in a position to positively influence Constitutional interpretation. The left fears that Judge Kavanaugh will adhere to the Constitutionalist method much more than his former boss, Justice Anthony Kennedy and as an intellectual legal heavyweight this poses a direct challenge to their power trip.

The left has succeeded in pushing their radical agenda on society through the Supreme Court and does not want it to be stopped. They recognize Judge Kavanaugh as a danger for being too learned, too Constitutionalist. He may find himself in the majority of cases in scaling back the administrative state. He may be ruling favorably in cases that consider the strength of the free exercise clause. Finally, and most threatening to the left he may one day be a deciding vote in scaling back abortion rights significantly if not a full overturn as a matter of Constitutional law.

The left as represented by Cory Booker, Kamela Harris and other radicals cannot be bound by the text of the Constitution, it limits their influence and is the only check on their power. Deep down they fear the voice of the people and want to take that voice away by purposefully twisting the text of the Constitution and dismissing the proper role of the judiciary to reach an unjust end.

Tearing down Judge Kavanaugh also symbolizes tearing down the Constitution. When being subjected to their antics on the news waves in the coming weeks and years, have this in the back of your mind. The very people they are tearing down, are the very ones with a record of being a guardian to the Constitution. This issue is bigger than Brett Kavanaugh, it encompasses the very governing structure of our society. Publius has warned- the question posed to you is: will you be complicit in this destruction or will you take steps to stop it? Brett2

Brett Kavanaugh’s Hearings – What to Expect

Brett Kavanaugh’s Supreme Court hearings are set to begin tomorrow. The goal is to have him seated by the beginning of the Supreme Court’s fall term in October. With the Republican majority in the senate, he will likely have the votes to be seated in that timeframe, however, that does not mean this hearing will be an easy one for the nation to watch or be consistent with the vision of the framers.

Since the bloody nomination days of Robert Bork, (see my law review commentary publication here on Bork) the Supreme Court hearing process has become more of a theatrical display of ways to score cheap political points with respective party bases during times of political turmoil. Instead of vying to ask tough questions on the nominee rooted in philosophy and adherence to the Constitution it has instead become a competition as to which senator will sensationalize the most in an attempt to embarrass the nominee. The leftist senators since the days of Ted Kennedy have insulted the intelligence of the American people and the process by asking inappropriate questions, mostly coming from the same guidebook of controversial social policy or in Clarence Thomas’ situation, lies about his career and personal life to embarrass him in front of the nation. In describing his experience, Justice Thomas was correct in boldly describing it as a “high-tech lynching.”

These reactions come out of a sense of fear that the unconstitutionalist senators have that constitutionalist judicial nominees are a threat to their agenda.  Nominees like Robert Bork, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh cannot be bought and are not willing to act as legislators or rubber stamp for an agenda. Their respective philosophies while containing slight nuances and differences in certain contexts, are generally united by originalism, textualism and judicial restraint.  Those buzz words have incited fear in the minds of the unconstitutionalists such as Ted Kennedy, Chuck Schumer, Al Franken, Cory Booker, then-senator Barack Obama and scores of others. These words reflect that the priority of these nominees is to not promulgate social policy from the bench to the detriment of the Constitution like other judges are more than willing to do such as Ruth Bader Ginsburg and Sonia Sotomayor. Rather, they are bound by the structure and text of the Constitution. In the end, the Constitution is what they answer to- not to the movements in society and so called “evolving times”.

During the hearings you will undoubtedly hear questions such as, “how you would rule in Roe v. Wade” or in Gorsuch’s case “you ruled for a trucking company, you must be against the little guy”. In the worst example, Ted Kennedy promoted lies with regards to the Bork nomination, “In Robert Bork’s America- women would be forced into back alley abortions and African-Americans separated at lunch counters.” These are just a few truly disgraceful examples of how low the unconstitutionalists and left will go to try and sink a nominee. Americans should be ashamed of this and demand accountability for this inappropriate and unprofessional behavior. One should not be painting a broad brush on a nominee based on a decision they rendered or force them to answer for a decision they took no part in such as Roe. They must, however, answer questions based on their philosophy and why they adhere it. At that point, reasonable conclusions can be drawn on deciding to vote for or against a nominee.

Do not be fooled and buy into the drama and cheap political pandering- take the nominee based on their qualifications and adherence to the Constitution. That is the chief litmus test. Do your own independent research on articles they have written or read cases they wrote decisions and dissents in. You will not be able to discern the true nature of a nominee based on lies and propaganda on the senate record during the hearings. By conducting your own research, you will formulate your own opinion while at the same time growing in intellect, no matter the outcome you reach.

As so eloquently stated by James Madison and Alexander Hamilton in the Federalist Papers, judges are to not be viewed as legislators and the Supreme Court should not be viewed as a legislative body for producing laws and crafting social policy.

In Federalist 47, Madison quoted Montesquieu and wrote, “were the power of judging joined with the legislator, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”

In Federalist 78, Hamilton, wrote when discussing the role of the judiciary, “it may truly be said to have neither FORCE nor WILL, but merely judgment.”

We as a nation must reflect on the reality currently faced with these hearings and look to return them to a decorum of fair evaluation in assessing the future guardians of the Constitution. This process has become reduced to nothing more than a campaign for the next legislator to stamp agendas. We can begin by stopping the dark money ads that promote lies about nominees and pressure members of the senate to vote in a certain direction. This is not a political campaign and should not be treated as such. Closed door meetings with nominees should not be on the front page of newspapers the next day, providing ripe material for the media to distort.

While this process may not entirely escape politics in the sense that a democratically elected president has the power to appoint Supreme Court justices and this is a viable ground for voters to decide on election day; it does not mean that once that power is exercised it should result in partisan bickering. The political influence should end once the appointment is made and from that point after, it is a question of qualifications with an assessment of judicial philosophy.

It is shameful that we have drifted so far from the vision articulated by Federalist Papers and have allowed self-interest and personal gain be put before respect for the Constitution and process. Be attentive, however, to these hearings and be mindful of the distortion machine that will be persistent, but respond with holding the unconstitutionalists accountable for their actions before the next Supreme Court vacancy.

Justice Scalia on the Death Penalty

Pope Francis and the Vatican have recently amended the Catechism of the Catholic Church to declare the death penalty inadmissible. This has drawn much controversy as Saint Pope John Paul II had previously maintained that exceptions exist for the Church to recognize the death penalty.

This leads us to reflecting on the role of the death penalty from  domestic standpoint in the legal realm. This post will consider the jurisprudence of the late great prominent Catholic jurist, Supreme Court Justice Antonin Scalia. We highlight some of his major cases here and also his personal perspective on the issue.

When considering Justice Scalia’s view, we consider a couple of his major death penalty cases, Glossip v. Gross and Roper v. Simmons.

Glossip v. Gross (2015)

The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In Glossip v. Gross, Justice Scalia concurred in the judgement of the Court which upheld the decision of the lower court to proceed with an execution in Oklahoma. The court held that the prisoner failed to identify a known and available alternative method of execution to the 3-drug process that included midazolam that would entail a lesser risk of pain, a requirement of all Eighth Amendment method-of execution claims.

Justice Scalia’s concurrence focused on challenging Justice Breyer’s opinion that was calling for the abolition of the death penalty. He found unsatisfactory Justice Breyer’s claims that the death penalty was a cruel punishment because it is unreliable, arbitrary, causes unnecessary delay and has a limited deterrent effect. Justice Scalia drew a distinction between the death penalty itself and convictions with claiming that the unreliability of convictions is the center of the issue, not the given punishment of the death penalty. He casts doubt into the notion that it is arbitrary by highlighting the fact that each case presents its own different circumstances and the court considers the mitigating circumstances on an individual basis. In terms of the length of time, Justice Scalia argued that concerns with length have no bearing on the Constitutionality itself of the death penalty as a form of punishment. In fact, he argued that the Court itself was responsible for this delay based on its ruling in Trop v. Dulles, 356 U.S.86,101 (1958) that placed restrictions on capital punishment and provided further opportunities for moves to delay execution.

Finally, Justice Scalia’s greatest argument focuses on the decisions of the people and how it ultimately rests with democracy so as to avoid a lingering assessment of the morality of the death penalty by lawyers and judges. The sole task of the judges and lawyers is to apply the law and he believed the Constitution allows for the death penalty and it is not the role of the Supreme Court to abolish the practice, rather it is the people’s responsibility if that is the direction they so choose.

Furthermore, we note, however, that at the time of the Constitution’s enactment to date, the death penalty has been recognized in many states, thus it should not be categorized as cruel and unusual and therefore prohibited under the Eighth Amendment. There is room to evolve the burdens and crimes that must be met to properly rely on the death penalty for punishment, but to call for its complete abolishment from the Supreme Court is very radical and would continue to set dangerous precedent like Roe v. Wade that denied the voice of democracy.

Roper v. Simmons (2005)

In Roper, Justice Scalia dissented from the majority opinion that categorized the death penalty as “cruel and unusual” when applied to those under the age of 18 years old.

The majority opinion argued that the Eighth Amendment reflected the evolving needs of society, thus execution prior to the age of 18 warranted a revaluation. However, a central argument that Justice Scalia made was that it was not the role of the judiciary to prescribe “evolving standards of decency” for society, but rather to assess the laws passed by the people that sought to reflect the evolving needs. The Court did not have the duty to act as the nation’s conscience.

He stated:

“The reason for insistence on legislative primacy is obvious and fundamental: “`[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'” Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). For a similar reason we have, in our determination of society’s moral standards, consulted the practices of sentencing juries: Juries “`maintain a link between contemporary community values and the penal system'” that this Court cannot claim for itself. Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)).”

Furthermore, he was also critical of the Court’s reliance on scientific and sociological studies to reach its conclusion:

“Today’s opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.

 This is just another example of the Supreme Court wading into waters that challenge its limits on authority. Justice Scalia agreed with then Chief Justice William Rehnquist in that these studies can often be found to be unreliable and vary based on target populations upon which the studies were conducted. There was much too uncertainty to use in making a ruling as a matter of Constitutional law.

Overall, Justice Scalia focuses much of his legal critique against restricting the death penalty on an understanding of the Supreme Court’s proper role in adjudicating the matters that come before it. It is driven by the judicial minimalist approach that is reluctant to interfere with valid democratically passed measures. This is very much in line with Hamilton’s view in Federalist 78 of the judiciary as one “that may truly be said to have neither FORCE nor WILL, but merely judgment.”

In terms of his moral critique against opponents of the death penalty, an article in First Things captures his perspective. It can be read here.

In brief, Justice Scalia does not find imposition of the death penalty as immoral and highlights parts of scripture such as St. Paul’s writings to make his argument that governments are free to impose just penalties. Just retribution for heinous crimes protects the interests of society and maintains civil order. Those that take lives, such as Timothy McVeigh and terrorists such as those who seek to carry out 9/11 type atrocities have inflicted incredible evil on society and present the capability of bringing more evil with their influence. Society has a legitimate purpose for punishing them for their actions.

In sum,  from a legal standpoint it is not the role of the Supreme Court to invalidate state decisions on the evolving views of the death penalty as a matter of Constitutional law. Some states recognize the practice while others do not. This is a similar argument and understanding of federalism that we have discussed with regards to the abortion debate.

From an ethical standpoint, educated minds may differ on their support for the death penalty as a means of punishment in the 21st century. In my personal opinion, as a devout Catholic and Constitutionalist it raises no concerns for me and I find it valid from both a moral and legal point of view. With that being said, I strongly believe that a high burden must be met before its imposition- that includes DNA testing and allowing the appeals process to take its course. It is our duty to not execute innocent people, however, those that seek to inflict heinous crimes and bring about an abundance of evil such as mass murderers, serial killers and terrorists should not have the sympathies of a just and moral society. They should be punished with just retribution equivalent to their crimes. Unlike abortion, where an unborn child is not given the chance to live- those that must suffer the consequences of the death penalty had an opportunity to live, but decided to use their time on earth to take innocent lives away in the most evil way possible. In the end, I argue although there are different processes to reach the outcome, St. Paul and Publius would reach the same conclusion.

Brett Kavanaugh Unmasked Part 1

Upon Justice Kennedy’s retirement from the U.S. Supreme Court, the president nominated his former clerk and judge on the D.C. Circuit, Brett Kavanaugh, to replace him. He is a devout Catholic and attended the same Jesuit high school as current U.S. Supreme Court Justice Neil Gorsuch. He attended Yale for college and law school. The president considered candidates from his list of 25, but various sources have stated that the president favored him from the beginning for his experience, education and solid judicial record.

This is the first in a two-part series assessing Judge Kavanaugh. The commentary will highlight some important points to consider when analyzing Judge Kavanaugh. We will discuss his judicial philosophy and look at a few of his recent major cases that are bound to gain some attention in the coming months as he proceeds through the confirmation process. Judge Kavanaugh has drawn many similarities to Chief Justice John Roberts with his philosophy.

The philosophy that most defines Judge Kavanaugh is judicial minimalism. This method can translate to a variety of outcomes depending on the nature of the case. Originalists can use judicial minimalism with their reluctance to disturb the original meaning of the text when interpreting the law. Living Constitutionalists and progressive legal theorists may rely on it as a means to maintain established precedent, despite it being created from decisions that do not have a strong basis in the Constitution. The judicial minimalist may not want to “rock the boat” so to speak and time can be a valid consideration for them. A judicial minimalist may also pay greater attention to the separation of powers and be very reluctant to invalidate congressional and legislative actions unless a very high burden is met.

When considering this philosophy in relation to Judge Kavanaugh, it would be reasonable to conclude on several cases he will prove to bring a very conservative and constitutionalist perspective, however, on other cases involving widely established precedent, you may find him more reluctant for full overturns at least during the opening stages of his tenure.

While we assess his cases, however, we must keep in mind that as a judge on the D.C. federal circuit, he was bound by the rulings of the U.S. Supreme Court which narrowed his scope of interpretation when making rulings. Several in the Constitutionalist circles have been concerned that he did not go far enough in some cases or did not reach his outcomes by using preferred reasoning, however, this criticism is not entirely fair when as a circuit judge one must assess the facts and arguments set before them and if they are harmonious with the Constitution and Supreme Court established precedent. The following are some of the more controversial cases that Judge Kavanaugh has recently heard that involve major society dominating topics.

From a Constitutionalist’s perspective there are elements of them that highlight some of the stronger points of Judge Kavanaugh’s philosophy, while other area may draw concerns and are worthy of further questioning by the senate during the confirmation hearings.

Garza (Undocumented Immigrant Abortion Case)

The threshold question in Garza v. Hargan was whether the U.S. Government may expeditiously transfer Jane Doe (the undocumented immigrant minor seeking an abortion) to an immigration sponsor before she makes her final decision. Ultimately, the court found that the minor did not have to wait to find a sponsor for the procedure to be conducted and her status did not prohibit her from obtaining the abortion right away.

Judge Kavanaugh criticized the full circuit’s majority opinion for inventing a Constitutional right to abortion for an undocumented immigrant without going through the process offered by the 3-judge circuit panel which considered Supreme Court precedent on abortion regulations and reached a conclusion that encouraged sponsorship. He provided some strong points in his dissent and emphasized how American law on abortion has been protective towards minors regarding a decision of this magnitude whether it be through waiting periods regulations, parental notification or the like. He then pointed to various Supreme Court decisions that upheld these regulations and emphasized that as a judge on the D.C.  Circuit it was not his role to disregard such precedent when hearing this case. He found that:

“The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion. But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor — ordinarily a family member, relative, or friend — before she makes that decision? . . . It is merely seeking to place the minor in a better place when deciding whether to have an abortion.”

Judge Kavanaugh brought up fair points that had been adjudicated in prior Supreme Court litigation and should have been persuasive precedent considered here. This case has drawn fire from those in conservative circles that would have liked him to have taken this opportunity to join a co-dissenting judge’s opinion that added broader language that the minor had no Constitutional right to an abortion. While in principle this may have been a correct Constitutional analysis, it did not fit at the circuit level in this matter because the government’s position during argument conceded that the abortion right existed under Roe v. Wade and Planned Parenthood v. Casey. As a lower circuit judge, it would not have been within his authority to decide the grounds outside this framework already established by the government to decide the case.

For the decision to be made on the Constitutionality of the abortion itself, the government needed to have made the argument challenging it to provide the necessary grounds for this case. The Supreme Court, however, should be the proper level to adjudicate the matter of its Constitutionality because Roe is Supreme Court precedent and at some point, there may be standing to challenge its Constitutionality through a law and strongly briefed arguments that raise this question at the highest level to encourage the Supreme Court to reconsider Roe.

Overall, in this case, Judge Kavanaugh has received unfair criticism and this should be considered by those following his confirmation process.

Seven Sky (Affordable Care Act Case)

The case that has given many in Constitutionalist circles concern is Judge Kavanaugh’s dissent in Seven Sky v. Holder that assesses the Affordable Care Act also known as Obamacare under a discussion focusing on tax. To be fair, Justice Kavanaugh narrows his dissent to the procedural aspects of lawsuits being brought because of Obamacare, not of the substantive nature of Obamacare.  His central argument defers to the wording of the Affordable Care Act passed by Congress and finds that sections of the Act cross-reference to chapter 68 subsection B of the tax code as the governing method to collect on penalties under the law. This would seemingly put it under the Anti-Injunction Act which essentially does not provide grounds for suits on the basis of taxing grounds until enforcement of the tax. He states:

“In short, the Affordable Care Act dictates that its penalties be assessed and collected in the same manner as chapter 68 subchapter B penalties. Chapter 68 subchapter B penalties in turn must be assessed and collected “in the same manner as taxes.” Taxes are insulated from pre-enforcement suits by the Anti-Injunction Act. In order for the Affordable Care Act’s penalties to be assessed and collected in the same manner as the chapter 68 subchapter B penalties and thus in the same manner as taxes, the Affordable Care Act’s penalties likewise must be insulated from pre-enforcement suits by the Anti-Injunction Act.”

As a result of this provision, he finds that the Anti-Injunction Act which shields taxes from pre-enforcement lawsuits before they are collected applied. In this case, the penalties provided for in Obamacare were not ripe to be enforced at the time of the lawsuit, thus there lacked grounds for a sustainable challenge and the court, according to Judge Kavanaugh, should have had no jurisdiction over the case until the penalties were activated.

Next, he briefly proceeds to assess the individual mandate established under the Affordable Care Act and glances at Constitutionality.

“This case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’s Taxing Clause power. To be clear, I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause. What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight. And just a minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause).”

Here, however, Judge Kavanaugh does hint at the possibility of the individual mandate being one day Constitutional under the Taxing Clause if the statute is amended to no longer mandate maintaining health coverage. He believes it should focus on language regarding a financial incentive of maintaining the coverage, which would be considered a much lower standard. A mandatory standard is too high to be enforced under this clause according to Judge Kavanaugh. It would not be unreasonable to conclude, however, that this supplemental analysis gave Justice Roberts valid consideration in his ultimate finding for preserving the Affordable Care Act through the taxing power.

Overall, although this opinion contained many intricacies and narrowed its focus on jurisdictional grounds of hearing challenges to the Affordable Care Act, it showcased Justice Kavanaugh’s firm commitment to separation of powers and deference to other branches of government, thus keeping within his judicial minimalist philosophy.

Priests for Life (Related to Hobby Lobby)

Finally, the case, Priests for Life v. HHS, does however raise a concern with Judge Kavanaugh’s philosophy. The religious organization petitioners in this matter challenged the condition of accommodation regarding the contraceptive mandate from Obamacare that required that they give notice of their sincere religious objections to such coverage. As plaintiffs characterize it, their act of excusing themselves from legal liability for not providing contraceptive coverage is what made such coverage available to employees, and hence violated their Catholic faith. The notification requirement allowed for the employees to still get the coverage even if it was not directly through the faith employer. The religious employer argued that by participating in this notification process the end result enabled them to be participants.

In his dissenting opinion that would not have upheld the denial of a rehearing in the matter, Justice Kavanaugh substantively applies the Hobby Lobby framework which includes evaluating a substantial burden on the religious entity to further a compelling government interest and assess if that burden can be accomplished by the least restrictive means. He found that a substantial burden on religion existed, however, he cites to Justice Kennedy and the dissenters in Hobby Lobby who state that contraceptive coverage does in fact serve a compelling government interest to provide contraceptives. He finds, however, that there also was a least restrictive means to provide the contraceptive coverage without compelling the plaintiffs. But the second prong compelling interest analysis needs to be explained and hopefully the senate questions him on it.

Here is the segment of the opinion:

“Justice Kennedy strongly suggested in his Hobby Lobby concurring opinion —that the Government generally has a compelling interest in facilitating access to contraception for women employees. Hobby Lobby, 134 S.Ct. at 2785-86 (Kennedy, J., concurring)see also id. at 2779-80 (majority opinion); id.at 2799-2801 (Ginsburg, J., dissenting); cf. Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In particular, Justice Kennedy referred to the “premise” of the Court’s decision: namely, its “assumption” that the Government has a “legitimate and compelling interest” in facilitating access to contraception. Hobby Lobby, 134 S.Ct. at 2786 (Kennedy, J., concurring). Justice Kennedy’s use of the term “compelling” in this context was no doubt carefully considered. And the four dissenting Justices likewise stated that the Government had a compelling interest in facilitating women’s access to contraception. Id. at 2799-2801 (Ginsburg, J., dissenting).

It is not difficult to comprehend why a majority of the Justices in Hobby Lobby (Justice Kennedy plus the four dissenters) would suggest that the Government has a compelling interest in facilitating women’s access to contraception. About 50% of all pregnancies in the United States are unintended. The large number of unintended pregnancies causes significant social and economic costs. To alleviate those costs, the Federal Government has long sought to reduce the number of unintended pregnancies, including through the Affordable Care Act by making contraceptives more cheaply and widely available. It is commonly accepted that reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the  number of abortions, and help break a cycle of poverty that persists when women who cannot afford or obtain contraception become pregnant unintentionally at a young age. In light of the numerous benefits that would follow from reducing the number of unintended pregnancies, it comes as no surprise that Justice Kennedy’s opinion expressly referred to a “compelling” governmental interest in facilitating women’s access to contraception.

In short, even if the Court did not formally hold as much, Hobby Lobby at least strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”

This is a very troubling opinion by Judge Kavanaugh. Not only does he fail to emphasize the governing majority and other concurrences on the Supreme Court, he affirmed as a matter of public policy the compelling interest of government in providing contraceptives. This gives me concern that he has shown a tendency to focus on policy rather than the Constitution here. While I was not expecting him to insert language promoting an overturn of Griswold (which allowed for government interest in contraception cloaked within an invented Constitutional right to privacy) because that is not his role as a lower circuit judge, I would have preferred he not reaffirm a flawed concurrence by Justice Kennedy and cite to dissenting opinions.

Conclusion

After considering Judge Kavanaugh’s record and philosophy, I think he can make a fine judge on the Supreme Court, but he does not come without red flags. He does not have the consistent originalist-oriented approach of Gorsuch and Thomas and he relies too much on judicial minimalism. One of this philosophy’s greatest flaws is the reluctance to disturb precedent in prior cases and excessively “punt issues” despite the serious Constitutional problems that a matter presents and the standing to address them. A judge should not shy away from issuing a decision that challenges decades old precedent if that precedent was in error and that judge has standing to address it. The first duty is to the Constitution and everything flows from this premise.

This should not, however, be considered a call to judicial activism in which the Constitution is disregarded to make way for policy considerations. There must be a balance between the two, the willingness to, for example, let democracy and other branches have their proper place in deciding certain matters while at the same time recognizing that there are appropriate times to “rock the boat’ and disturb precedent if that is what the Constitution calls for. The litmus test for how Judge Kavanaugh fairs on the Supreme Court is how he is able to strike that delicate balance.

I believe, however, that we must also not forget Judge Kavanaugh’s prior position and how by its very nature as a circuit judge he was limited with the resources to consider when reaching decisions. At the Supreme Court level, Judge Kavanaugh will have an opportunity to expand his considerations when deciding cases and this should be reason for optimism. He is an intellectual force and has the potential to be a good asset to the Court for years to come.

Stay tuned for part 2 when we assess his administrative law writings and jurisprudence…..

Who Should Replace Kennedy on the U.S. Supreme Court

Recently, Justice Anthony Kennedy, the longest serving justice on the Supreme Court, having been appointed by President Reagan in 1988 officially announced his retirement. Justice Kennedy was considered the Supreme Court swing vote on many of the Court’s Amy Barrettblockbuster cases from abortion to gay rights to affirmative action and the Second Amendment. The announcement of his retirement has energized constitutionalists as the president now has an opportunity to appoint a consistent constitutionalist voice to serve on the high court.

The president has announced he will pick from a list of 25 to replace Kennedy and the announcement will take place on July 9. With that being said, here are my thoughts on worthy finalists for the seat. I have named my 3 top candidates and a dark horse candidate that will likely not be named this time around, but if another opening emerges would be a strong choice in the future.

Top Choice- Judge Amy Barrett of the Seventh Circuit

Judge Barrett recently assumed her position on the Seventh Circuit after serving as a very well respected academic and scholar at Notre Dame Law School for several years. She is a graduate of Notre Dame Law School and clerked for Judge Laurence Silberman of the D.C. Circuit and the late great Justice Antonin Scalia at the U.S. Supreme Court. She has seven children and is a very devout Catholic.

Judge Barrett presents many advantages, she is a renowned legal scholar with first-hand experience working with the top legal minds in the nation. She also has braved through difficult confirmation hearings for her Seventh Circuit appointment and will not shy away from another challenging process. Some may remember these hearings for the attacks she endured for being a devout Catholic in the legal community.

In terms of the law, her legal philosophy is rooted in constitutionalism and originalism as evidenced in her writings. She has written:

 “The Constitution’s original public meaning is important not because adhering to it  limits judicial discretion, but because it is the law. . .the measure of a court, then is fidelity to the original public meaning, which serves as a constraint upon judicial decisionmaking. A faithful judge resists the temptation to conflate the meaning of the    Constitution with the judge’s own political preference; judges who give into the temptation exceed the limits of their power by holding a statue unconstitutional when it   is not.”[1]

Furthermore, she is not overly bound by the philosophy of stare decisis which promotes a strong adherence to prior court decisions even if they have questionable grounds. One who has an overreliance on stare decisis follows prior decisions closely and plays extra attention to how long they have been law and is often reluctant to issue a sweeping decision to disturb precedent. Judge Barrett has recognized in her writings that judges should not be over relying on stare decisis, it is merely a factor. If decisions were wrong the day they were decided they are still wrong today. The Court should not be relying on stare decisis as a prevailing factor, the Court first and foremost should be adhering to the Constitution.

Some may point to her judicial inexperience as a negative, however, that same sentiment was once echoed for another judge, Clarence Thomas, who has become of the top judges of the modern era.

Overall, I believe Amy Barrett should be the top choice for the Supreme Court vacancy. Her intellect and proven accomplishments as a respected legal mind will be a great asset to the court for years to come.

Senator Mike Lee                      

U.S. Senator Mike Lee is another notable name that has drawn intrigue to fill the vacant Supreme Court seat. Mike Lee represents the Utah in the senate and has a proven conservative record. He graduated from Brigham Young Law School and clerked for current U.S. Supreme Court Justice Samuel Alito when Justice Alito served on the Third Circuit. Before becoming a senator he specialized in appellate and Supreme Court litigation. As a senator, he serves on the judiciary committee.

Judge Thomas Hardiman of the Third Circuit

The runner up to Justice Gorsuch for Justice Scalia’s seat, Judge Hardiman currently sits on the Third Circuit. Judge Hardiman is a graduate of Notre Dame and Georgetown Law School. His judicial record indicates strong support for the Second Amendment and he Judge Thomas Hardiman of the 3rd Circuit and Fed Socalso joined an opinion vacating the conviction of an anti-abortion protestor who was peacefully protesting. He also possesses a strong judicial record recognizing religious freedom interests. Having joined the Third Circuit at age 41, he has many years of federal judicial experience and would be a strong fit for the court.

I also should note, having personally met him he was a very genuine and soft-spoken individual. He exerts a humbleness about him that should garner a great deal of respect from his peers.

Dark Horse: Judge Patrick Wyrick of Oklahoma Supreme Court and U.S. District Court Nominee

Judge Wyrick is only 37 years old and his name has been rising in conservative legal circles for his work as an Oklahoma Supreme Court Judge and former solicitor general of Oklahoma. While his nomination is unlikely with his relative youth at this point, expect his name to gain steam if another vacancy opens. He has been nominated to serve on the U.S. District Court for the Western District of Oklahoma and is awaiting a vote before the senate. It is clear that his career is being fast-tracked to one day reach the circuit level or perhaps the Supreme Court.

Some of Judge Wyrick’s significant experiences include representing Oklahoma in challenging the Affordable Care Act and representing the interests of the state in a notable death penalty case.

[1] Barrett, Amy Coney, “Countering the Majoritarian Difficulty” (2017). Constitutional Commentary. 4

Masterpiece Bakeshop and its Incomplete Defense of Religion

As this U.S. Supreme Court term winds down, we reflect on one of its signature decisions, the Masterpiece Bakeshop case. The facts of this case and those similar to it have been debated since the legalization of same-sex marriage in Obergefell v. Hodges. The threshold question has been, how will same-sex marriage impact the rights of religious objectors? Suits have been brought and filed against religious small business owners such as bakeshops, florists and photographers. While the outcome of Masterpiece Bakeshop was a victory for religion and proof that it justifiably maintains Constitutional protections, the decision and reasoning used in the majority opinion approached the matter from a narrow perspective. In my personal opinion, Justice Thomas’ concurring opinion (joined by Justice Gorsuch) presented a stronger method of legal reasoning, freedom of expression.

With regards to the majority opinion, Justice Anthony Kennedy focused on the issue of the Colorado Civil Rights Commission adjudicating the complaint against Masterpiece Bakeshop with an animus towards religion. The public record reflected unjust bias against matters of faith and most specifically the bakeshop owner, Jack Phillips, with unfair commentary by the commissioners which in turn called into question the fairness of the proceeding. The majority opinion relied on discussing the State’s duty under the First Amendment to not base laws or regulations on hostility towards religion or a religious viewpoint. This opinion provided acceptable Constitutional reasoning, but it would have been stronger if it had focused on reinforcing the importance of Jack Phillips’ constitutional right to freedom of expression.

Justice Thomas argued in his concurrence that “states cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”  He cited Texas v. Johnson that provided, “if there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” He warns that this sets a dangerous precedent for state actors and government to stomp out any forms of expression that it deems not in line with the mainstream. This is a very dangerous path that the United States must not undertake and is a major issue that the Constitution was meant to defend against.

Finally, the last paragraph of Justice Thomas’s opinion provides an excellent summary that recognized the warranted fears for religion that emerged after Obergefell. Justice Thomas stated:

“In Obergefell, I warned that the Court’s decision would inevitably come into conflict with religious liberty, as individuals are confronted with demands to participate in and endorse civil marriages between same sex couples. This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom for speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new  orthodoxy.’ 576 U.S. at ____ (Alito, J., dissenting) (slip op., at 6). If that freedom is to    maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.”

This was a powerful statement by Justice Thomas and emphasized that his warning regarding the harmful threats to religion indeed have come to pass. Freedom of expression doctrine can largely mitigate the harmful threats towards religion.

It is commonly presented in opposition commentary that there should be bounds to freedom of expression, most notably in regards to religious objectors and that freedom of expression should not be used to expel or discriminate against people. Well one could argue that in these facts there is no such weaponization. Jack Phillips offered to make regular cakes and other products for the same sex couple. They were never denied service to his establishment, he just simply chose to not provide same sex wedding cakes as a featured product at the bakery. It did not matter if the couple sought to purchase the product or one of their mothers. There was no animus towards an individual entering the establishment based on their orientation. It was a conscious religious choice by Phillips to not produce the product. This is an essential fact with regards to the analysis and one that should be the subject of further commentary when adjudicating these cases.

Overall, Obergefell has had far reaching effects most notably in the context of religious freedom, Despite what mainstream commentary would lead one to believe, there still is strong sentiment in favor of respecting religious values in this nation. Religious liberty was a major factor in establishing this nation as evident in the early Protestant settlers that had fled England in response to religious persecution. The right to religious liberty and expression are core constitutional principles. While Masterpiece was a start in the right direction, there is still much work to be done and I argue it should have went further.

Maybe just maybe one day Justice Thomas’ brilliant concurrence will be central reasoning in a religious liberty majority opinion, time will tell……….