Wednesday, May 06, 2015

RFRAs in Private Litigation: A Reply to Amar and Brownstein

By Michael Dorf

My latest Verdict column addresses an issue raised by Justice Scalia in last week's SSM oral argument. He asked whether recognition of a constitutional right to SSM would mean that states could no longer grant clergy who refuse to perform same-sex wedding ceremonies the power to peform any wedding ceremonies that have civil as well as religious consequences. The question has generally been treated as trivially easy: No one thinks that this will result. But as I explore in the column, the question is harder than commentators assume. If states themselves cannot deny people SSM, why can clergy deputized by the state do so? I ultimately conclude that the best explanation for why states may continue to give civil recognition to marriages performed by non-egalitarian clergy is that those clergy should not be understood as state actors when they perform religious ceremonies--even though the state gives civil effect to the ceremonies.

My Verdict column is partly styled as a response to a Verdict column last week by Professor Marci Hamilton, who--expressing the conventional wisdom--called Justice Scalia's question a "no-brainer." Although I ultimately agree with Professor Hamilton's bottom line, I try to show why Justice Scalia has raised a serious issue about the relationship between general obligations and religious liberty.

In this post, I want to address another question about that relationship, this one prompted by yet another Verdict column: A piece by Professors Vik Amar and Alan Brownstein that, in turn, responded to my earlier column about RFRAs in private litigation. If all of this sounds like a whole lot of inside baseball, I apologize. I do think there are important issues here--and while the differences among Professors Amar, Brownstein, Hamilton, and Dorf are relatively small and subtle, they may have important consequences down the line.

Let me briefly set the stage. In my April 8 column I began by acknowledging that there's nothing anomalous about a constitutional or statutory right applying in private litigation. I nonetheless offered two reasons for thinking that, absent express language addressing the private litigation question, a state or federal RFRA ought to be construed so as not to apply in private litigation. I'll recap those reasons in reverse order so as to focus attention on the main disagreement between Amar/Brownstein and me.

My second reason built on the proposition that courts and legislatures are properly reluctant to grant religious exceptions from general obligations where granting that exception imposes substantial burdens on third parties. I acknowledged that a third party could sometimes be subject to a substantial burden even in litigation between the religious claimant and the government but that a third party is just about always burdened by a religious exception if the issue arises in litigation between that "third" party and the religious claimant. Accordingly, I said that it may be simpler just to adopt a categorical rule that disallows RFRA claims in private litigation.

Professors Amar and Brownstein disagree with my proposed categorical rule. They would prefer a case-by-case balancing approach in which the burden on third parties is evaluated in both private litigation and litigation against the government. The disagreement here is of a familiar type. It invokes the tradeoff between rules and standards. My proposed rule--like just about all rules--is somewhat over- and under-inclusive relative to its background justification. The Amar/Brownstein standard is more finely calibrated but at the expense of uncertain application and higher administrative costs (because more people with ultimately losing claims would litigate). I don't think that it's obvious which approach is superior. I'm sure that all of us--Amar, Brownstein, and I--believe that in some circumstances a categorical rule is superior to a standard and in other circumstances vice-versa. My sense of the cases likely to arise leads me to think that the rule is preferable here, but absent substantial empirical evidence about the claims that actually arise, it's hard to know who has the better argument.

Accordingly, I'll leave our disagreement about my second rationale there and turn to my first rationale. I said in my original column that the application of a RFRA in private litigation is different from nearly every other constitutional right. (I say "constitutional" notwithstanding the fact that RFRAs are usually statutes, because a RFRA is meant to function similarly to a constitutional right.) How is RFRA different? The key is a point that American constitutional law is pervasively rule-dependent, as explained by Professor Matt Adler in a series of articles (in the Michigan Law Review, the Harvard Law Review, and Legal Theory). That is, constitutional rights are rights against rules, rather than rights to engage in conduct full stop. For example, Texas v. Johnson protects a right not to be prosecuted for burning a flag under a statute that forbids flag burning due to the message expressed by flag burning; it does not protect a right to burn a flag under a statute forbidding lighting a fire in public (so long as that statute is applied even-handedly so that the statutory rule is the actual rule).

Adler's normative view is controversial and one can quibble at the margins with his descriptive view. For instance, free speech doctrine at least purports to provide some protection for expression even as against content-neutral laws. But this sort of quibble at most requires a minor modification to Adler's description, wherein one says that constitutional law almost never provides protection for acts simpliciter. And even thus restated, Adler's analysis shows why RFRAs function differently from just about all other rights. RFRAs shield conduct; they don't attack rules.

Take an example I gave in my column. Suppose that a state law permits ex-wives but not ex-husbands to collect alimony. I acknowledged that this law should be subject to challenge in private litigation. The ex-husband seeking alimony from his ex-wife says that the law is constitutionally defective in drawing a sex line. Amar and Brownstein say the same thing about RFRAs. They say that whenever a private party raises a RFRA claim in private litigation, he or she also says the rule at issue is defective in failing to make an exception. But while this is a conceptually possible way of describing the situation, it's hardly the most natural way to describe it. It seems more natural to say that the rule is fine but that the RFRA claimant has a separate entitlement to be shielded from liability.

Consider a case of simple trespass. Suppose that Owen has posted on his property a sign saying "no trespassing." Whenever someone comes on Owen's property without his permission, Owen asks them to leave, and if they don't, Owen sues (for damages after they've left or for an injunction if they remain). Now suppose that Reggie comes on Owen's property. Owen asks him to leave. Reggie says he can't leave because a tree on Owen's property is holy in Reggie's religion, and Reggie needs to remain on Owen's property to worship at the tree for a week. Owen sues Reggie for trespass, and Reggie defends by invoking a state RFRA that is silent on whether it applies in private litigation.

If Amar and Brownstein are right, then we would say that the common-law tort of trespass is a RFRA-violative rule because it does not include an exception for religious trespasses. But it seems more natural to say that the common-law tort of trespass is fine; it's just that RFRA shields religious trespassers like Reggie, if the RFRA applies in private litigation.

Amar and Brownstein's description obscures how far-reaching are the consequences of applying RFRAs in private litigation, because it equates that application to examples like the alimony case, where the defect really is in the rule. But in the trespass case, we see that applying RFRA in private litigation essentially means waiving the state action requirement for RFRAs. It converts RFRA into a more powerful tool than the Constitution in a case like Shelley v. KraemerAllowing Reggie an exception from the common law of trespass means saying that the RFRA protects people's right to free exercise against their neighbors, not just against the state.

To be clear, a state could enact a RFRA as far-reaching as that. But the argument of my column was that absent strong evidence that it has, courts should presume that RFRAs do not so radically change our understanding of what a right to free exercise of religion means. Amar and Brownstein have not persuaded me otherwise.


Joe said...

What exactly do the clergy provide here for legal purposes? The key thing seems to be the license. To execute it, some sort of ceremony is required - be it at city hall or in a private ceremony. It seems akin to swearing or affirming.

Why do we allow a special option for clergy? This at times leads to complications. In NY, e.g., "internet ministers" have not been recognized as qualified though NYC itself registers them as officiants. A few states allowed couples to marry themselves following Quaker doctrine.

It seems to me to be a free exercise thing. Marriage is a sacrament to many and the very act that seals the deal is left to clergy. Clergy that can choose not to marry various people that violate certain religious norms. As Kagan flagged, nothing is special to the SSM context really. It being flagged here as compared to priests not marrying Protestants is self-serving.

The essay suggests this is a complicated issue if we follow strict lines. Perhaps. But, the thing arises in other contexts. Education is another state function. The state allows parochial schools, like clergy officiating, to provide that function. And, they can have requirements that otherwise would be seen as discriminatory.

If the government can blatantly hire clergy to serve as chaplains, I think there is room here to have clergy serve various public functions if people choose them among various choices. The government provides the license. The final sealing the deal can be done however one likes. Like swearing/affirmation, the government can require something to show the specialness of the act, but the choice is the couple's.

Unknown said...

@Joe: I would be interested to see if NY could sustain the exclusion of, to use Your phrase, "internet ministers". It sounds to Me like a case of excluding a particular category of religious Officials.

Unknown said...

In the trespass example, would it really be "the RFRA protects people's right to free exercise against their neighbors, not just against the state"? It would be the state otherwise enforcing such a ruling but I think the fact a Neighbor is involved is incidental. Nonetheless, the example is less than perfect because I think an argument could be raised saying the enforcement of trespass restrictions furthers a compelling government interest (namely, the securing to Each Person Their private property without interference by other private parties) and no way of advancing that interest exists other than a categorical directive saying, "You may not be here if the legal Owner says leave".

Greg said...

In the case of RFRAs, they don't really do either of these things.

Because the legislature can't restrict a future legislature short of a constitutional amendment, RFRAs are nothing like constitutional rights.

Essentially the RFRA simply rewrites every law that doesn't say otherwise to say "except when applied to religious practice unless furthering a compelling government interest by the least restrictive means."

Given that, why would the law contain that exception in government suits and not in private litigation?

I'm not arguing a should here, I'm arguing a does.

Joe said...

@Unknown, there has been a few challenges related to the "Universal Life Church" (which repeatedly comes up in NYT wedding announcements) and one recent challenge in a mid-level appeals court called into question the rule. I used a general label since logically the Church of the Flying Spaghetti Monster or something should work too.

That's one of the few cases and note how it is in effect a statutory interpretation that turns on the minister not arising from a "governing ecclesiastical body of the denomination or order." But, that to me sounds like it favors some religions over others. A few cases suggest you need a limit since officiants should have some exclusive status; shouldn't just be anyone. But, why should an "ecclesiastical" body matter more there? Seems a rank Establishment Clause issue. I suggest you require officiants to pass a test or something, or have periodic open sessions to inform them of current wedding rules or the like.

People actually use these types of ministers in various cases in NY and NYC actually registers them as officiants, but it's a problem -- I know of a couple cases where on appeal the marriages were deemed improper. A member of the NY legislature actually proposed to change the law and was told that the state of NY officially thinks the ULC etc. do not count as ministers under the law.

I wish someone would press the issue -- I think if taken all the way, the NY Court of Appeals would hold the current rule improper. Various states ruled on this issue; some fairly conservative states ironically have more liberal rules here than NY. OTOH, NY until fairly recently was not a total "no fault divorce" state either.

Hashim said...

How is applying RFRA to private litigation analogous to waiving the state-action requirement? There's still abundant state action -- the creation and enforcement of trespass laws w/o the requisite carve-out for religious liberty. It's no different from the requisite state-action in cases like NY Times v. Sullivan, where the state creates a private tort suit that infringes on free speech.

The conservative objection to Shelley v. Kramer isn't that there wasn't state-action in judicially enforcing a private covenant -- of course, there was -- but that the state action wasn't *intentionally discriminatory*, because the state judiciary merely had a neutral rule of enforcing private covenants w/o regard to private discrimination.

And the whole point of RFRA is that *intent* isn't necessary for state action to infringe on religious liberty. One can totally agree with Scalia's view in Smith and yet still think that RFRA's abrogation of Smith was intended to cover all state action, including state action in enforcing state-conferred private rights.

Michael C. Dorf said...

Hash: All you have done is to restate the point that Amar and Brownstein made, and which I acknowledged in my column a month ago. My point--which is illustrated in the case of Owen and Reggie--is that because of the quite unusual nature of a right to exceptions, RFRAs in private litigation are tantamount to eliminating state action. I don't know how else to explain this to you if you don't feel the force of the Owen and Reggie example. Again, my point isn't that Amar and Brownstein (and you) are conceptually wrong; my point is that as a practical matter this opens the floodgates. Maybe the state action point would be more obvious if instead of a RFRA we had a FSRA, "restoring" free speech by giving people a right to free speech even against neutral laws. Then, when Reggie wants to erect an "I love Hitler" sign on Owen's lawn, he has a presumptive right to do so because Owen permitted his other neighbor, Joe, to erect an "I love my town" sign on his law. (I know, in that case there's also a violation of Owen's right not to speak, but even the violation of the property right is problematic.)

Hashim said...

The reason it's not tantamount to eliminating the state-action requirement is that there are some privately imposed burdens on religion that have nothing to do with the State. For example, if Owen burned (or was going to burn) Reggie's house down because of Reggie's religion, RFRA wouldn't do Reggie any good. It's only when state law is enforced against Reggie -- either directly by the State or indirectly by private parties given a cause of action -- that RFRA comes into play.

At this point, you and Neil might presumably respond that *all* private action is somehow traceable to the State (e.g., the State enabled Owen to burn Reggie's house down or at least failed to prevent him from doing so). And I'd then respond with all the normal conservative arguments about why the state-action doctrine can't be gutted through such clever attempts to manipulate the baseline through which normal people view the public/private distinction.

So I end where I began: one can strongly believe that certain constitutional/statutory rights exist only against the State, and yet still believe that those rights obviously apply where the State has authorized private parties to infringe those rights, even through "neutral" rules.

Hashim said...

PS. Perhaps the simplest way of making my point is to use your Hitler hypo: RFRA wouldn't give Reggie "a presumptive right" to put the Hitler sign on Owen's lawn. Nothing in RFRA would stop Owen from tearing such a sign down himself. What RFRA would do would give Reggie a presumptive defense if Owen, rather than relying on self-help, chose to enlist the State's coercive force by bringing a trespass action. So the state-action requirement is alive and well even if RFRA applies to private litigation.

Michael C. Dorf said...

Hash: Good point. I agree that in your self-help example there is no state action, so my "tantamount" is a bit overstated. But I think that self-help is sufficiently rare that it's only somewhat overstated. For example, suppose that Owen tears down the sign. Reggie then sues Owen for Owen's destruction of Reggie's property (and maybe for intentional infliction of emotional distress). Owen defends by invoking his own property right. But now the RFRA comes into play. This sort of play seems available in nearly all circumstances. So it's not the state in the background that makes state action nearly vanish; it's the fact that RFRA runs through all laws.

Unknown said...

Suppose a clergyman "marries" an underage girl to an adult man without checking her birth certificate (and without getting the consent of her parents). Thinking they're married, the couple have sex. Later, the girl's parents find out, she becomes emotionally distraught, and she eventually sues the State for having approved the sham marriage and leading her to participate in an illegal act. Can the State say: "Well, look, we just give effect to religious ceremonies. The clergyman wasn't an agent of the state." That seems weird.

It seems to me that when clergy marry couples, they really do act for the State, and that the State deputizes them to determine and confirm that the marriage is valid under State law. This is what happens when the clergyman signs the State issued marriage certificate after the wedding. Or am I missing something?

I was listening to the oral argument, and my first reaction to Justice Scalia's question was to bite the bullet and answer his question in the affirmative. Think of the following scenario. Jack and John live in a very religiously conservative State, and, as it happens, every single person who has been granted the right to marry couples is a member of a conservative clergy that refuses to recognize SSM. The effect of permitting these clergy not to officiate at SSM's is that there will be no SSM's in the State. It might be replied to this that there will *always* be *some* people ready to be deputized to perform SSM's. Perhaps. But that is a purely contingent matter, and we don't want the ability to exercise a constitutionally protected right to hinge on contingent matters.

The upshot of all this, it seems to me, is that those (including clergy) who have been granted permission to solemnize opposite-sex marriages *must*, if they want to keep their power, agree to officiate at same-sex marriages. If they don't agree, then they should lose their power. And the State (through its agents) should take over the job of officiating at marriage ceremonies.

If you think of how this would apply in an interracial marriage, the case becomes even clearer. Even if you are a member of a clergy that has religious objections to interracial marriage, you are not permitted to back out of marrying interracial couples.

Hashim said...

Very interesting response Mike. In your tweak to my hypo, though, I might agree that RFRA is inapplicable. But not because RFRA doesn't ever apply to litigation between private parties; rather, because the Govt arguably wouldn't be substantially burdening the exercise of religion at all.

In particular, in the tweaked hypo, the religious individual is a pltf seeking to invoke the coercive power of the Govt and the Govt is merely refusing to provide its coercive power because it has given the other party a defense. Not at all clear to me that the Govt's refusal to provide its coercive power over the defendant counts as a "substantial burden" on the plaintiff's exercise of religion.

Indeed, this arguably can be demonstrated by making the defendant the Govt itself: Reggie puts up his sign on Govt property, the Govt tears it down, Reggie sues for destruction of property, and the Govt defends based on its own property right. That doesn't really seem like a "substantial burden" on religion, and Bowen's "internal affairs" doctrine arguably so holds. This shows that, in your tweaked hypo, the problem with applying RFRA isn't its application to private parties, but rather its application to the State's mere failure to affirmatively facilitate religious exercise (as opposed to negatively burdening such exercise).

All that said, I need to think about this some more, since it obviously depends on a burden/benefit distinction that might not be consistent with the canonical pre-Smith caselaw concerning unemployment benefits.

At a minimum, though, it seems to me that one can easily draw the line at applying RFRA to these weird situations where the religious individual is the plaintiff in private-party litigation, without throwing overboard the more common and burdensome situation where the religious individual is the defendant in private-party litigation.

Joe said...

Samuel Rickles, you speak of "every person" being given the right to officiate being in a conservative religion. That is not the scenario in any state. The practice is that a range of people -- including the state itself -- have the power to officiate. Yes, if only religious institutions were given the power to marry, that would be a problem.

It is like education. Each state requires minimum education for children. They cannot merely allow religious institutions (which in various cases have barriers to entry illegitimate if the state had it) to do that.

"It seems to me that when clergy marry couples, they really do act for the State, and that the State deputizes them to determine and confirm that the marriage is valid under State law."

Unclear. NY, e.g., officiants "not having personal knowledge" of the couple not being a valid couple can officiate. It is unclear how many states in effect require each minister etc. to be an expert of state marital law here.

I think in most cases it is more like a notary public (who in NY cannot marry people) -- they are merely witnesses. The state has the job of determining legitimacy when handling out the license.

Joe said...

ETA: Again, if Scalia is right, it isn't limited to this. The state could block Catholic priests from marrying unless they were willing to officiate where a member of the couple is divorced or not a Catholic.

Unknown said...


1. My case wasn't meant to be actual. It was meant to be hypothetical. And I wasn't assuming in the hypo that religious *institutions* would be the only parties with the power to marry. I was assuming, hypothetically, that every person given to right to marry by the State is deeply religious, and that it would shock their respective religious consciences to officiate at a SSM ceremony. This is far-fetched, but possible. And my point is that, if this happened, and religious exemptions were granted to all persons with the power to marry, then same-sex couples would not be able to exercise their constitutional right to be married in that State. This is untenable, because it cannot be left to such contingent matters whether one is able to exercise one's constitutional rights.

2. If officiants are mere *witnesses*, then they are window-dressing. That can't be right. If a couple is married in city hall by a State employee, that employee serves as more than a witness or notary public. She or he asks the two persons, on behalf of the State, whether they agree to undertake the responsibilities of married life. The member of the clergy who does the very same thing at a different location (house of worship, beach, or wherever) is also acting for the State, and is securing the explicit consent of the two persons on behalf of the State. If that weren't so, then the two persons would need to go to city hall and do the very same thing all over again.

Joe said...

1. Scalia was talking about clergy. Your hypo does not to me seem realistic except to the degree perhaps locally (not state-wide) all the city clerks would have a religious opposition. Scalia spoke of "clergy" though. If he said city clerks with religiously based opposition, your strict rule might be required.

2. A witness is an important role; some probably would find it an important honor to serve as a witness at a wedding. They are not "window dressing" alone.

I cited NY law to note that the officiants here are not obligated in each state to ensure that the couple is in all ways legally fit to be married. A priest, e.g., in NY is not liable if they officiate and the person turns out to be a few months too young. They must have personal knowledge that the person is ineligible & even then, it's a small penalty.

Joe said...

ETA: I might be confusing your point, but I stick by my education example.

If there was a range of options available, the state can allow parochial or private schools with barriers to entry not allowed by the government as one of many means of serving that governmental function. They could also allow home schooling (some states allow self-marriages).

Parochial school teachers would be the ones providing the testing etc. mandated by the state but doing so with a religious gloss. The state could not only allow parochial schools to educate or allow public school teachers with religious opposition to let's say associating with the "immoral" not educate the children.

This would could deny education services to some people. But, as long as there were places for all to go, a state could require children to be educated.

Hank Morgan said...


I'd be curious to hear your thoughts about the issue of tax-exempt status that also came up at the oral argument. It seems reasonable to predict that, if same-sex marriage is recognized as a constitutional right, and if the current trend of growing public acceptance of same-sex marriage continues for the next ten to twenty years, then there will be significant political pressure on the IRS to deny tax-exempt status to religious organizations that have policies against same-sex marriage. Do you see a reprise of the Bob Jones University case coming in the future? It's hard to see a persuasive distinction between the Bob Jones case and a hypothetical case involving denial of tax-exempt status to organizations that discriminate on the basis of sexual orientation. But I think many people would feel there was a greater cost in religious freedom if such a denial were to take place, partly because many more organizations could be at risk of losing their tax exemption (think of the Catholic church, or Orthodox synagogues).

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