Wednesday, January 18, 2017

Religious Freedom and Hard Cases in the 4-4 Court

by Eric Segall
   
About a month before Justice Scalia passed away last February, the Supreme Court voted to hear an important case raising fundamental questions about the separation (or not) of church and state. The Missouri Constitution prohibits any and all public money going to religious institutions. A church school challenged this categorical exclusion when denied an opportunity to compete for state money to improve the safety of school playgrounds. The lower court upheld the exclusion, which exists in one form or another in many other states. The case is so difficult because, while all the Justices likely agree that state aid cannot go to core religious instruction, and while all the Justices also likely agree that police and fire protection cannot be denied to churches, temples and mosques simply because of their religiosity, this case falls right in the middle of those extremes. 

Although the Court took the case over a year ago, it has yet to schedule oral argument, presumably because the Justices are likely deadlocked on the difficult issues. I fully understand that deadlock. On the one hand, denying all but the most basic public aid to religious institutions feels harsh and discriminatory. In fact, this specific Missouri law enacted towards the end of the 19th century had its origins in anti-Catholic prejudice.

On the other hand, defenders of the Missouri law, and others like it, argue that allowing churches, temples and mosques to compete for public money against each other, and against non-religious institutions, could cause significant religious strife leading to potential violations of the First Amendment's Establishment Clause or its stricter parallel state constitutional provision. In addition, these statutes have a long history and for those concerned about the role of tradition in constitutional interpretation, the invalidation of such laws would amount to overly aggressive judicial review. The most relevant Supreme Court precedent, Locke v Davey, upheld a similar program in which the State of Washington prohibited generally available scholarship money to be awarded to students studying to be ministers. Yet, not using public money for the education of religious officials feels much different than the categorical exclusion of all religious institutions from any but the most needed public aid.

So this case is truly hard, and I express no opinion about its proper outcome. My purpose in writing this blog post is to suggest that the country as a whole is better off with the Court not deciding the case at all, which would likely be the result if the Court were to stay evenly divided among partisan lines.

Had the case been decided while Justice Scalia was still alive, there is every reason to think the Court would have struck down the law 5-4 (assuming Justice Kennedy would have voted that way). Had Merrick Garland been confirmed, the smart money would have been on the Court upholding the law. Now, with Trump getting the next pick, the odds are the Court will strike the law down if the case is not moot (there is talk Missouri may not enforce this law anymore). In other words, who is the ninth Justice likely makes all the difference in this case.

Leaving aside one's view on how the controversy should be resolved, is the country better off with the case being decided 5-4 in one direction or the other or better off with the potentially different rules in different circuits where court of appeals judges will also likely divide on this difficult question? My argument is that this case is so close and the need for uniformity so weak, that there is much to gain by recognizing that the Justices should not make national policy on these type of hard issues by a 5-4 vote along partisan lines.

People may prefer one result or another in this case but few would argue the result is obvious from text, history or precedent. How each Justice, or lower court judge, votes would likely depend more on their own personal views on the proper relationship between church and state than legal analysis. That being the case, isn't it fair to ask why we need a national rule preempting state decisions on this difficult matter? If Missouri wants to adhere to strict separation of church and state while other states do not want that separation, the justification for federal intervention seems small. Of course, court of appeals judges may decide to strike down such laws but at least those judges are regional decision-makers not national decision-makers, and they are generally much more versed in local law, values, and context than the Justices who spend their entire working lives in the nation's Capitol.

If the Court intervenes in these kinds of cases by a 5-3 vote, which on the present Court would mean by definition a non-partisan vote, that result seems just a bit less incongruous. For that to occur, at least one Republican would have to vote with the Democrats or vice-versa, which suggests the decision isn't completely partisan. Moreover, 5-4 decisions along partisan lines are much more vulnerable to critique and later overruling than decisions where one or more Justices apparently abandons his partisan principles to reach a favored result.

Of course many folks would likely argue that this analysis applies equally to issues like same-sex marriage, free speech, and abortion where five-to-four majorities have displaced state and federal decisions even though the governing law is much less than crystal clear, My response is exactly right. National policy on fundamental questions that divide us a country and which are not resolved by clear constitutional text or paradigm cases should not be made by a bare majority of unelected, life-tenured judges unless there is a need for uniformity for uniformity's sake. But those cases are rare.

Whether one is liberal, conservative, or somewhere in between, we are all better off if the power to strike down state and federal laws is dispersed among hundreds of lower court judges who are geographically and politically much more diverse than our nine national Justices. If a national rule is desperately needed, the Justices, through compromise and bipatisanship, will find a away. If not, we should insist on more than a one-person majority before important political decisions are reversed by our highest legal tribunal.

6 comments:

Greg said...

I think this case is far more unique than, for instance, the same-sex marriage case. In a case like this one where a state is trying to carefully balance the principles of religious establishment vs. religious free-exercise, the correct thing to do is for the court to uphold the law out of respect for the other branches of government. Religion is unique in this context because the constitution creates two principles that are often directly in conflict.

Same-sex marriage is different because it is based on equal protection. There is no balancing constitutional principle of UNequal protection that the legislature would be attempting to follow by treating a group unequally. Similarly, there is no balancing constitutional principle of restricted speech.

There's a reasonable argument to be made that the Supreme Court should dodge the controversial questions, but that feels a little extreme. I could potentially get behind the court deferring to the legislature for HARD questions, but with the stipulation that not every controversial question is actually a hard question.

Joe said...

"National policy on fundamental questions that divide us a country and which are not resolved by clear constitutional text or paradigm cases should not be made by a bare majority of unelected, life-tenured judges unless there is a need for uniformity for uniformity's sake."

What "clear constitutional text" means is unclear and the author thought something that split the USSC 5-4 was an example of it. And, many of these issues -- and this case appears to be one -- will involve narrow issues with swing justices inclined to act in a somewhat ad hoc fashion.

And, if Trump gets two more justices on his side, an eight person Court can very well be "bipartisan." Thus, we are left with a nuance where it has to be four of each party, like how the FEC is split or something, though even in such cases, one group often has a one vote majority. And, given the range of party membership -- see Joe Lieberman helping to confirm a Trump Cabinet member -- there are limits to even that. So, I'm overall somewhat dubious about the whole thing.

I do lean toward judicial restraint -- e.g., rejected some push here in comments for the DOMA case to have decided the full SSM issue & wished the whole thing (though it's late in the day by now) developed in more steps. And, many state cases should be left to states more than they are. Religion cases with different things balanced (free speech is also factored in many of these cases) is an example. Of course, where to draw the line there will be debated.

Anyway, the specifics of this case as compared to some other case & the possibility of a narrow result [Locke v. Davey allowed some play in the joints] makes me wonder of using it as an example. And, net, not sure how useful a 8 person Court will be to deal with the questions. A supermajority rule, taking less cases (back in the day, the USSC took fewer categories of cases, especially when a constitutional right was upheld below) etc. might be better. But, I welcome the discussion.

Eric Segall said...

Joe, I am in favor of a super-majority requirement to strike down laws but that would take a constitutional amendment, mine would not. My proposal (always 4-4, even partisan balance) won't end discretion or hard cases but it would cut down on partisan decision-making and greatly improve our horrid confirmation process.

el roam said...

Thanks for that post . On one hand , the author of the post , states clearly , that religious institutions , receiving public money , would interfere with first amendment . Yet, on the other one, one may argue: if a religious institution, wouldn't benefit from public money, and would have to be shut down and vanish, it would also amount with interference or violation of the first amendment.

The freedom of speech , has two dimensions :

Active and passive . In the first one , you actively , deny or harass expression , and in the latter , you deny the right or basic infrastructure from it , so , it would perish , or wouldn't express itself and exist at first place ,and so :

People can express themselves privately , but , if they can't demonstrate , gather , protest and so forth…. All due to lack of permissions , or for apparent security reasons , or even funding fences , or , lacking transportation , or not allowed to hire conference rooms , and so forth ….. it would hurt ( passively ) first amendment rights , not less than actively doing so .

So , what is the solution ??

First the problem : and it is simply , the very fact that there is constitution ( let alone , federal one ) . By nature , constitution , implies rigidity and supremacy !! when you become rigid and not flexible , you find it hard to judge cases : on case by case basis . The rigidity of the constitution, reigns supreme.

So , thinks must be shifted to courts and judges . In an advanced judiciary , courts are naturally , functioning as " sub- legislators " . This is because, the legislator is not competent to legislate (parliament members are not legal expert typically) and: legislation is blind and general, can't predict any or every possible concrete case. Judges are ultimate experts of law . They have more capacity , and possibility , to handle concrete individual case , in precise and flexible manner .

So , if an institution is about to shut down due to lack of money , and the money is needed for vital infrastructure , and not for preaching their theological doctrine , and can be administratively verified so , then :

On case by case basis , and by a court , they should be allowed to raise money from public sources .

Thanks

Joe said...

"My proposal (always 4-4, even partisan balance) won't end discretion or hard cases but it would cut down on partisan decision-making and greatly improve our horrid confirmation process."

I don't know how much this would occur and think some other mechanisms that did not require a constitutional amendment (such as reduction of jurisdiction of state law questions more comparable to past eras) might be better.

By blatantly labeling judges as partisan picks, it seems to make it more political. One horrid aspect is the lack of openness, see Kagan's conversion there when she was a nominee. Not sure this would deal much with that problem. There are also significant differences between possible Democratic and Republican nominees, thus the confirmation process would still matter significantly.

And, there are really a very narrow number of 5-4 cases that have much bite. The avoidance mechanisms of the current Court also leave somewhat desired in many cases, applying in a range of cases, not only divisive constitutional questions but a range of things where clarity in the federal law in appropriate. The result also in certain areas the DC Circuit or perhaps another has more say with a national reach. This is dubious especially if we get into the weeds.

I see some value in an eight person court though even as a thought experiment -- and that is what it amounts to -- seems other ways to go. Finally, not quite sure majority rule in all cases is constitutionally based. Does that apply to court of appeals too? Doesn't seem clearly determined by the document, noting tradition surely does lean in one direction.

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