Belief or Status?

          We have to hope that the Supreme Court, led by Justice Anthony Kennedy, will reject Michael McConnell's oral argument on behalf of his client, the Christian Legal Society. Christian Legal Society believes that it is entitled to be a recognized student group at Hastings Law School even though it refuses to accept Hastings' "all-comers" policy that all official student organizations must be open to all students. Christian Legal Society refuses to admit students who practice a homosexual lifestyle because that lifestyle violates their Christian beliefs. 

          It is shrewd for McConnell to argue that CLS v. Martinez is a case about belief, because the Supreme Court has held that religious belief enjoys absolute protection. If the case is about belief, then CLS can do absolutely what it wants to. The Supreme Court has always held, however, that religious conduct is not absolutely protected. Therefore a religionist is absolutely free to believe he should sacrifice virgins to an angry god but not actually to sacrifice them. I think the Court should rule that discrimination against gays is not protected free exercise or free speech and rule for Hastings Law School.

          In the oral argument at the Court, however, the wording turned on belief and status. McConnell argued that the all-comers policy is wrong because it violates all student groups' beliefs. Thus the Republicans' beliefs are violated if they have to admit Democrats and the Democrats' beliefs are violated if they have to admit Republicans. But what if the Republicans don't want to admit African-American students, and the Democrats don't want to admit women?

National Prayer Day

          Billy Graham's son Franklin Graham was disinvited from the Army's celebration of the National Day of Prayer. The reason given is that Graham has described Islam as evil and offensive. He wants Muslims to know that Jesus Christ has died for their sins. Prayer day sponsors hope to find a more inclusive speaker.

           Franklin Graham is not known for his inclusive prayers, so it is surprising he was invited in the first place. At George W. Bush's 2001 inauguration, Graham prayed in the name of the Lord Jesus Christ, even though the presidential inauguration should be an event uniting all Americans, and, of course, all Americans are not Christian. Last year, Steven Waldman posted an excellent essay explaining that as the country has become more diverse, the inaugural prayers have become less inclusive and more Protestant in content. 

          That is the problem with government-sponsored prayer. Prayer is by definition exclusive, not inclusive. Muslims have their prayers (but not to Jesus Christ) and Protestant Christians have theirs (but not to Allah). There is no common prayer that can unite all the nation's believers and nonbelievers. That is why Americans are free to pray in their mosques and churches, where they can practice their own particular faiths without having to worry about including non-members. 

          The government should not be in the business of inviting or disinviting Franklin Graham to pray. The Army is mistaken to think it must just search harder for a more inclusive prayer. Prayer is never inclusive of all Americans. 

Confirm Goodwin Liu

          Goodwin Liu, the brilliant Berkeley law professor, has been nominated by President Obama to become a judge on the Ninth Circuit Court of Appeals. Among his numerous writings, Liu is co-author of a book called Keeping Faith With the Constitution. The book was published by the American Constitution Society, an organization that was formed to counter the influence of the Federalist Society, which was established in 1982 to spread the influence of conservative ideals. The Federalist Society has enjoyed tremendous success in placing its members on the federal courts; Supreme Court Justices John Roberts, Antonin Scalia and Samuel Alito are among its members. Led by Justice Scalia, Federalist judges have proposed the constitutional theory known as originalism and denounced judicial activism by liberal judges. 

          Liu's book demolishes the conservative theories of constitutional interpretation. As he cogently explains, whether judicial activism is defined as lack of deference to democratic decision-making, failure to adhere to constitutional text or original meaning, lack of deference to judicial precedent, selective provision of access to the courts, or the use of judicial power to achieve partisan objectives (40), the conservative Rehnquist and Roberts Courts are guilty of it. (See, e.g., Bush v. Gore and Citizens United.) Instead of allegiance to the obscure original intent of the Framers, Liu proposes a theory of constitutional fidelity that allows the Constitution to be interpreted in historical context.

          At Liu's confirmation hearing, Utah Republican Senator Orrin Hatch mocked Liu's theory of constitutional fidelity, arguing that it sounds more like fidelity to judges and judging rather than the Constitution, and implying that Liu would be a judicial activist. Hatch was especially critical of the idea that constitutional interpretation should be influenced by historical events.

          Consider the implications of the two constitutional theories for religion. If originalism is right, then the Religion Clauses protect only those religions known to the Framers and present in the United States at the time of the Constitution's ratification. Justice Scalia suggested as much when he wrote in the Ten Commandments cases that the First Amendment allows the states to disregard polytheists, believers in unconcerned deities, and atheists. Justice Scalia's interpretation appears to put the Asian religions outside the scope of constitutional protection, either  because they are not monotheistic or because Asians were not present in sufficient numbers in the original United States to come within the constitutional text. In contrast, although Professor Liu does not write about the Religion Clauses, his theory of fidelity to the First Amendment allows the Clauses to protect all Americans, as they should, and as most Supreme Court decisions have held.
          Liu's book does point out that originalism cannot protect women's equality, as neither the Framers of the Constitution nor the Fourteenth Amendment had any commitment to women's equality. 

          I have no idea what Professor Liu's religion is, if any, but at his confirmation hearings he spoke movingly of his Taiwanese parents, who encouraged their son to get the best education possible after they immigrated to the United States, as well as of his mentor Robert Matsui, the Japanese-American Representative from Northern California, who was interned as a baby during World War II, along with all the Japanese-Americans whose fidelity to the Constitution was questioned after the attacks on Pearl Harbor. 

          Liu is under attack for espousing a theory of constitutional interpretation that allows the Constitution to include all Americans. He deserves immediate confirmation instead of repeated suggestions by the Senate that he is unfit to be a federal judge. 

Obama Flouts Court Decision

          A federal district court judge ruled last week in Freedom From Religion Foundation v. Obama that the statute creating the National Day of Prayer is unconstitutional. The statute passed in 1952 in response to a campaign by evangelist Billy Graham to return the nation to faith in Almighty God. Although the legislators called on Catholics, Jews, and Protestants to participate in the prayers, Graham's clear interest was in returning the nation to Jesus Christ. The statute is unconstitutional, the court concluded, because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience. 

          The judge was right; under the Establishment Clause, the government should not promote, encourage or endorse religion or religious practice. Prayer is the quintessential religious practice. Federal legislation promoting a day of prayer sends a message to non-believers that they are outsiders, less than full members of the political community, while the religious insiders are favored. The government is not supposed to favor religion over irreligion but remain neutral. 

          Anticipating the inevitable political fallout from her legal decision, Judge Barbara Crabb's opinion also observed that individuals remain free to pray. Indeed, it is in order to promote individual religion that the Establishment Clause protects citizens against the government's preferring or encouraging religion. 

          The White House immediately announced that the president would ignore the ruling, proclaim a National Day of Prayer on the first Thursday in May, as the statute requires, and call upon the nation to pray. Thus the president confirms, as his prior practices and speeches predicted, that he is a champion of his own religion rather than religious freedom, a Defender of the Faith rather than the Constitution. 

Discrimination Masquerades as Free Speech

          Christian Legal Society bars gay and lesbian students from becoming members or officers because it regards unrepentant participation in or advocacy of a sexually immoral lifestyle as inconsistent with affirmation of the CLS statement of faith. CLS's members at UC Hastings College of the Law are free to discuss their biblically-based opposition to homosexuality and to use the school's facilities for their group meetings. Their discussions and their meetings enjoy protection under the free speech and freedom of association rights of the First Amendment. 

          Unfortunately, CLS now has a free speech case before the Supreme Court that is not about free speech. CLS applied to become a recognized student organization [RSO] at Hastings law school in San Francisco. RSOs are allowed to use the Hastings name and logo, can send mass e-mails through the school's e-mail system, receive a listing on the Office of Student Services' website, and use the Student Information center to distribute their information.  

          Hastings has a nondiscrimination policy for all RSOs that prohibits discrimination on the basis of sexual orientation. When CLS refused to comply with that policy, Hastings denied the organization RSO status. As noted above, unrecognized organizations can use school facilities and generally available bulletin boards. In other words, CLS still enjoys the right to speak about its discriminatory beliefs and practices.

          Hastings' policy is appropriate under both California and federal law. The U.S. Constitution protects a right to sexual privacy for gays and lesbians. Racially discriminatory schools can lose their tax-exempt status, even if religion is the basis for their discrimination, without violating the First Amendment. Discriminating in membership on the basis of race or sexual orientation, moreover, is conduct, not speech. The government should not be required to give benefits to groups that refuse to comply with antidiscrimination laws.  

          Nonetheless, CLS is arguing that its free speech rights were violated when it was denied access to the public forum created by the university. The Christian Right has won numerous religion cases in the Supreme Court by recharacterizing them as free speech cases. There is a good possibility that the Court will back CLS and find its free speech rights were violated. In other words, we have to worry that the Court will favor one religion's view of homosexuality over the neutral antidiscrimination laws. 

          Most of the briefs filed in the case engage in a free speech analysis. This is a mistake. As the district court ruled, this is not a case about speech. It is a case about the antidiscrimination laws. The government's responsibility is to enforce the antidiscrimination laws in every context. CLS is free to complain about those laws all it wants. But it is not entitled to government approval of its discrimination. The Free Speech Clause should not be interpreted to permit discrimination by student organizations. Discrimination is conduct, not speech.

        

A Law Unto Himself

          The Supreme Court decided a very important and controversial Free Exercise of religion case in 1990, Employment Division, Department of Human Resources of Oregon v. Smith. Justice Antonin Scalia explained that religious believers are not automatically exempt from state and federal laws, but must, like everybody else, obey neutral laws of general applicability. To suggest that the Free Exercise Clause allowed religious believers to disobey the law, wrote Scalia, misinterpreted the First Amendment. Laws, he wrote, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

          If Smith were taken seriously, churches would be held to the same legal standards as everyone else. In the sexual abuse crisis that has plagued the Roman Catholic Church, for example, criminal law should have imprisoned the abusers as well as the clerics who hid molesters from the law. Tort law should have found the abusers and their employers--including bishops and popes--liable for malpractice, negligent hiring, negligent retention, infliction of emotional distress and fraud. Bankruptcy law should have focused on distributing the church's assets to victims. The church should have been treated no better--or worse--than any other wrongdoer.

          Instead the church repeatedly hid behind the First Amendment, citing pre-Smith law to argue that the church was exempt from legal oversight as a matter of religious freedom.

What Was Ratzinger Doing Instead of Confronting Sex Abuse?

          News reports have questioned the involvement of Pope Benedict XVI (then Cardinal Joseph Ratzinger) in the decision to allow German priest Peter Hullerman to continue working with children for thirty years after the church knew Hullerman had molested boys. The church said the decision to allow the priest to resume his duties in 1980 was made solely by Cardinal Ratzinger's top aide at the time, but church officials also said the future pope was sent a memo about the reassignment. What kept the cardinal so busy that he was inattentive to the abuse details in Germany, and continued unaware of the crisis when he left Germany to take up duties at the Congregation for the Doctrine of the Faith in 1981? Ratzinger was too busy silencing theologians to worry about sex abuse.

My Letter to the NYT

       You can read my commentary on the Times' coverage of the abuse crisis here.