Monday, May 31, 2021

Race, Religion, and Supremely Pernicious Constitutional Interpretation

 By Eric Segall

One of the most important and yet under-discussed Supreme Court cases ever decided is Washington v. Davis. This dispute involved civil service tests used by the District of Columbia police force. The tests had disparate negative effects on African Americans, though there was no evidence they were adopted for that purpose. The issue was whether the government's use of these tests violated the (non-textual) equal protection principle of the Fifth Amendment. Given how many facially neutral laws burden racial minorities, this was a potentially country-changing question because the holding would also apply to the (textually based) equal protection clause of the Fourteenth Amendment. 

The enormity of the case did not escape Justice White, who wrote the opinion for the Court holding that to make out an equal protection violation, whether under the Fifth or Fourteenth Amendments, plaintiffs must show that the government intended to discriminate. White wrote the following:

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Given this country's long and sordid history of racial discrimination, there are reasonable arguments that exactly what this country needed in 1977 when this case was decided, and today, is a ruling by the Supreme Court that would make "far reaching" changes to the relationship between and among our country's numerous racial groups. But arguing with the holding in Davis is not the point of this blog post, and I accept the correctness of the decision for purposes of argument. 

From 1963-1990, the law governing the the First Amendment's free exercise clause allowed plaintiffs to challenge generally applicable statutes and policies that were were not passed with the intent to discriminate against religion but which substantially burdened religious practices unless the government could show the law or practice served a compelling interest and was narrowly tailored to further that interest. This test was not exactly strict scrutiny in practice, and the Court only rarely struck down laws on this basis, though lower courts did so much more often.

From 1977-1990, therefore, plaintiffs challenging laws that burdened their religion did not need to show discriminatory intent to win their case while plaintiffs alleging equal protection violations based on race did have a constitutional obligation to show that, no matter how great a burden they suffered, the challenged laws were passed with discriminatory intent. A reasonable person could easily conclude that this differential treatment was not justified by text, history, precedent or policy. As to the last factor, a strong argument could be made that, if anything, there has been much worse racial discrimination than religious discrimination in our past. Therefore people of color need more protection from laws that have the effect of discriminating against them than religious folks need from secular laws that burden their religious practices. As to text and history, like all hard constitutional questions, clear answers cannot be derived from imprecise text and contested history.

In any event, this differential treatment of generally applicable laws came to an end in 1990 when the Supreme Court, in an opinion written by Justice Scalia, ended the 27-year experiment begun by the Warren Court to protect religious folks from generally applicable laws that burdened their free exercise of religion. In Employment Division v Smith, the Court held, similar to Washington v. Davis, that plaintiffs challenging laws that were passed for secular reasons were not subject to First Amendment challenge no matter how much they burdened or adversely affected religious activity (unless, like with race, the laws were implemented in a discriminatory fashion). Justice Scalia said the following:

Precisely because we are a cosmopolitan nation made up of people of almost every conceivable religious preference and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws...to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races The First Amendment's protection of religious liberty does not require this. (citations omitted).

Thus, the Court brought the law governing the First and Fourteenth Amendments into harmony: to make out a constitutional violation under either the free exercise clause or the equal protection clause, a plaintiff must show discriminatory intent (or application). Burden or effect alone is not sufficient. There are reasonable arguments suggesting that both of these rules are less than ideal but at least they were consistent.

Any day now, this harmony will likely come to an end. First, the Court has asked the parties in Fulton v. City of Philadelphia to brief, among other things, whether Smith "should be revisited." In Fulton, the city passed an amendment prohibiting entities that provide referrals for public adoptions from discriminating against same-sex couples. A Catholic organization sued, saying this disqualification violated their rights under the free exercise clause. Under Smith, this amendment would almost certainly pass constitutional muster as it is generally applicable and was not passed for the purpose of discriminating against religious groups. There are complicated arguments that under an extremely narrow interpretation of Smith, the amendment was not generally applicable in practice, but I think there is a great chance the Court will overturn Smith in this case and we will go back to the legal regime in place between 1963 and 1990.

In addition to the Court formally asking whether Smith should be revisited in Fulton, five of the six conservative Justices have already shown their cards on, at a minimum, interpreting Smith in a way that effectively guts the decision. As Professor Jim Oleske has described for SCOTUSBlog, this interpretation would:

sharply limit the impact of Smith by interpreting it as guaranteeing a 'most favored nation' status for religious exemption claims. Under [this] theory, even if a law broadly covers both secular and religious conduct, it would not be considered 'neutral and generally applicable' for purposes of Smith if it contains any exemptions that are deemed comparable to the requested religious exemption...[T]he existence of any such exemptions for 'favored' activity triggers a presumptive right to a religious exemption that the government can only deny if it satisfies strict scrutiny.

In a "shadow docket" opinion delivered late on a Friday night, Justice Kavanaugh joined by Justices Gorsuch, Alito, Thomas, and Barrett struck down California's Covid-19 regulations that, at the time,  prohibited all in-home gatherings of more than three households (secular or religious) because California at the time also allowed some businesses to include more people than that at their locations. Of course, the law was not triggered by discriminatory intent and retail businesses and private in-home gatherings are not remotely comparable for a bevy of reasons. Applying Smith in this way, according to skeptics of the "most favored nation status," would amount to nothing less than, in Oleske's words, "an end-run around Smith’s teaching...that the free exercise clause protected only against laws that have the 'object' of burdening religion."

Given how five Justices voted in this Covid-19 case, and the call for briefing on whether to overturn Smith in Fulton, it appears likely that come the end of June either Smith will be explicitly overruled or essentially limited to its facts. Assuming that happens, we will once again live in a country where the government would have to assert a compelling interest to justify generally applicable laws substantially burdening religious exercise but would have to only show a legitimate interest under an extremely deferential rational basis test when generally applicable laws disproportionately burden people claiming racial discrimination. 

Why would the Supreme Court create such a regime? Because, as Erwin Chemerinsky said a long time ago in a famous Foreword to the Harvard Law Review, "constitutional law now and always is about values." The Roberts Court cares much more deeply about the rights of the religious than the rights of discrete and insular racial minorities--so much so that it is willing to strike down laws that burden the religious regardless of whether the law was intended to do that but it is not willing to extend that same protection to people of color. And that value judgment is, in this author's opinion, pernicious and wrong. I will likely have much more to say about that once Fulton is decided.

3 comments:

Joe said...

The judgment call noted at the end of the piece is key here.

Courts will decide "constitutional values" (I quote; I don't judge) and it will rest on who does it and how it is does. To state a refrain, this is why the selection of judges should meet a basic standard of legitimacy. To state a constitutional value. The last three did not. They could have and still have handled things wrongly. But, that adds insult to the fire. Sorry, Justice Breyer. Non-expansion hurts legitimacy too.

I think that has to be said, but to move on. Yes. Extreme cases aside, "neutral" (here the quotes are suspicious ones) laws will be upheld even if they have harsh racial effects. I agree far reaching changes are warranted. I would understand, however, if that is seen as something best left to the legislature. Of course, this illegitimate Court (I'll call it one) won't let them do that in various ways.

I have a somewhat wider view of the Free Exercise Clause than the author, but think the Smith Rule was largely appropriate for similar reasons -- exemptions have historically been seen as appropriate, but something that will involve policy judgments that broadly speaking are legislative. Courts can regulate the edges. A 'most favored nation' approach, as is it is sometimes called, for religion will in practice favor certain religions and clash with the Establishment Clause.

Free exercise will be more protected in certain cases. A church school can only hire Catholic teachers while Walmart can be stopped from only hiring Christian sales staff. I think the specific case of Oregon v. Smith was badly decided. But, the basic neutrality rule makes sense. And, in the long run, it protects religious liberty. If not maybe the religious liberty of the sort the Barrett Court supports.

David Ricardo said...

This post is excellent. It should be in the Post Hall of Fame.

It takes on a topic that few people, certainly myself, have not focused on and does so in a way that not only makes valid points, but makes them in a way that anyone could understand. And its conclusion is one that illustrates the awful nature of a conservative Court, a Court that will impose its own values in an inconsistent manner.

In ruling against almost any neutral, public interest laws and regulations that have minor, implicit burdens on relgion the courts indiectly force religious values on those of us who do not necessarily share those relgious beliefs (and in fact in some cases actively oppose them.) One wonders how many people were sickened and how many died because courts found that legislation and regulations were invalid because they prevent religious services. We will never know the number, but we know the number is greater than zero.

And in declining to uphold those laws and regulations which promote equality the Court strikes at the very core of a democratic society based on equal protection before the law. It is not too extreme to conclude that the current Court is a dire threat to the functioning U. S. democracy. It is terribly tragic and ironic that the same people who react in horror to the possible imposition of Muslim Sharia Law, something that is not even contemplated or possible, support so stongly the imposition of Christian Sharia Law which is becoming more prevalent and will do so even more after this Court is through with this topic.

So kudos to Prof. Segall for illuminating his points so clearly and effectively. Would that the nation listen.

Joe said...


"Sharia" basically translates to a "straight path."

I'm not sure about the etymology, but that sounds a lot like "The Way" that was the given to the early Christian movement. Given the regional overlap, I have an idea that the two things are related.

And, yes, people are quite open to reliance on biblical based secular law.