by Michael C. Dorf
My latest Verdict column critiques Sidney Powell's motion to dismiss the defamation lawsuit filed against her by Dominion Voting Systems. Some of the news coverage of Powell's motion has suggested that she is making the argument that her statements about the election being stolen from Donald Trump were so transparently ludicrous that no reasonable person could have believed them. That's not far off, although it's not exactly accurate either. As I explain, the motion to dismiss makes contact with reality in a few places, but it should ultimately fail. If political speech can ever be defamatory--and the SCOTUS cases indicate that it clearly can be in at least some cicrucmstances--Powell's post-election attacks on Dominion should trigger liability.
During the course of my column, I note the irony that both Trump himself--through his suggestion that we "open up" defamation law--and right-wing ideologues--like Judge Silberman, whose call to overrule NY Times v. Sullivan I recently discussed--are in favor of greater liability for defamation, while Powell's motion to dismiss would nearly shut down such liability. Some readers will likely have a more cynical reaction; the juxtaposition is not simply ironic but hypocritical, they will think. I have no current interest in pushing back against that view.
Instead, I want to use the balance of today's essay to discuss another current flashpoint involving the First Amendment--about how to treat religiously motivated claimants seeking exceptions from general rules. For this topic, I'll take as my point of departure last week's Sixth Circuit ruling in Meriwether v. Hartop, which permits a First Amendment lawsuit by a professor at a state university who refused to call a trans student by her preferred pronouns.
From roughly the early 1960s until 1990, the Supreme Court construed the Free Exercise Clause to require that governments excuse people whose practice of religion was substantially burdened by a law or policy to give them exceptions from the law or policy, unless the government could show that the law or policy was the least restrictive means of achieving a compelling interest. The Court rarely actually applied that test to provide for exceptions, but that was the formal rule.
Then, in 1990, in Employment Division v. Smith, the Court in an opinion by Justice Scalia said that the Free Exercise Clause was only an anti-discrimination principle. If a law applied to everyone, i.e., if it didn't single out religion or religious people, wasn't motivated by anti-religious animus, and was applied even-handedly, then no one could claim a First Amendment right to exceptions. Smith was not partisan when it decided, except to the extent that conservatives tended to like it and liberals tended not to. However, over time, conservatives came to dislike Smith (and liberals came to accept it), mostly because the people seeking religious exceptions were increasingly religious Christians rather than, as in Smith itself, practitioners of minority faiths (there Native Americans who engaged in a peyote ritual). Accordingly, in recent years, various conservatives have called for Smith's overruling. They might succeed, perhaps as early as the current Term.
Not content to wait for Smith's overruling, conservative lawyers, judges, and justices have been construing their way around it. The maneuvers take three main forms: (1) In the COVID and other cases, the Court has increasingly treated the granting of any exceptions for secular enterprises as conclusive evidence of discrimination; (2) lawyers successfully raise free speech claims on behalf of religiously motivated speech; and (3) courts rely on sketchy evidence of anti-religious bias. I have written at some length on this blog about (1) (here, here, and here). Accordingly, in the balance of today's essay, I'll focus on (2) and (3), which are both implicated by Meriwether.
The Meriwether panel recites a version of the facts that is highly sympathetic to the professor-plaintiff. Not knowing the actual facts, I'll offer a skeletal version: After some backing and forthing, a state university told a faculty member that he had to call on students by their preferred pronouns; he offered to do so but only on condition that he get to include in his syllabus a disclaimer "noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity," which are exactly what you imagine they are. The university found that offer inadequate and inconsistent with the respect towards people's gender identity that the pronoun policy itself was meant to convey. Various proceedings and appeals ensued, ending with the professor receiving a formal written reprimand. Because he feared that the reprimand could be used as the basis for more serious discipline (such as dismissal), he sued. The district court dismissed the complaint, but the Sixth Circuit reversed, finding that he had adequately alleged both free speech and free exercise claims.
Although there is some useful and sensible language about academic freedom in the panel opinion, I am overall dubious about the bottom line. That said, I am not now interested in the merits per se. Rather, I want to note simply that the case would be cleaner and less dangerous if Smith were overruled.
If Smith were overruled, the case would be straightforward. The court would first inquire whether the professor feels a sincere and religiously motivated obligation to refrain from calling trans (and non-binary and other students) by the pronouns they prefer. Presumably the answer would be yes. At that point, the issue would simply be whether the state's interest in ensuring a welcoming learning environment is compelling and, if so, whether the pronouns policy is narrowly tailored to serve it.
Because Smith isn't the law, that's not how the case proceeded. But because conservative judges nonetheless feel considerable sympathy for people like the professor plaintiff in the case, neither did the court say, as the Smith Court itself said, "sorry, you lose; try the political process."
Instead, by recognizing a free speech right, the court greatly expanded the universe of potential claimants. How many faculty at state universities are uncomfortable calling people by pronouns that do not correspond to their sex assigned at birth? I don't know the answer to that question, but it shouldn't be relevant to any legal question. Sometimes there are things that people must do as part of their government (or other) jobs even though it makes them uncomfortable. Only a small fraction of those people will actually have a bona fide religious objection--in the sense that complying with a job condition violates some religious obligation. But just about everyone who is merely uncomfortable will be able to claim truthfully that they would rather not engage in the uncomfortable activity. Where that activity is expressive (as in the pronouns one utters), the discomfort is elevated to a free speech claim. The inevitable efforts to circumvent Smith lead to a very substantial expansion of the group of people potentially eligible for exceptions.
To be sure, the Sixth Circuit conceptualizes its holding as a special academic freedom exception to stricter limits on employee speech. However, the reconceptualization of religious freedom claims as free speech claims occurs in a great many contexts that do not include the limits on employee speech. For example, religious plaintiffs who bring free speech claims in opposition to public accommodations laws are not constrained by the employee speech doctrine.
Speaking of such cases, in Meriwether, the Sixth Circuit cites the Masterpiece Cakeshop decision. Readers will recall that that case was argued chiefly as a free speech case, although the Supreme Court ultimately decided it on free exercise grounds. The Court found that some comments by two member of the Colorado Civil Rights Comm'n expressed hostility to religion (even though they pretty clearly didn't).
Likewise, Judge Thapar writes for the Sixth Circuit in Meriwether that university officials expressed hostility to the professor's religious beliefs. Here, at least, the evidence of hostility is more substantial than in Masterpiece, but it still should probably be irrelevant, as there is really no serious case to be made that the university adopted or applied its pronouns policy because of any hostility to religion. The best that can be said for the opinion on this point is that it depends on the case's procedural posture: on a motion to dismiss, the court must accept the non-moving party's allegations as true, and here the professor alleged that the hostile comments were causal. That's almost certainly false, as perhaps the university will be able to establish through discovery.
However that all shakes out, the very inquiry into supposed hostility to religion is an effort to circumvent Smith. If plaintiffs can point to hostility to religion, they can get the strict scrutiny to which they would be entitled merely by showing a substantial burden on their free exercise if Smith were to be overruled.
The search for evidence of illicit motive has harmful consequences. In addition to adding to the complexity of litigation because motive is difficult to prove, it tends to reinforce the victim narrative that FoxNews talking heads emphasize in their annual denunciation of the (fictional) War on Christmas and that the likes of Justice Alito propounds both from the bench and when speaking to likeminded practitioners of right-wing grievance politics.
My fellow liberals may worry that overruling Smith would license the courts to grant religious exceptions to important programs, especially those that promote equality. But as cases like Masterpiece Cakeshop and Meriwether show, conservative jurists are already enjoying such license. Overruling Smith would promote honesty, reduce the number of claimants (by channeling litigation into the more limited religious track rather than the open-ended free speech track), and limit the destructive invocation of conservative religious grievance politics.