Play in the Joints
Earlier this year, I was honored to deliver the Dyson Distinguished Lecture at Pace University. My invitation arrived before the second Trump administration's all-out assault on constitutional democracy, and so I chose a topic that one might more closely associate with normal constitutional law than with the ongoing crisis in which we find ourselves. I addressed the possibility that recent Supreme Court cases had shrunken--perhaps to nothing--the domain of "play in the joints" between what the Free Exercise Clause of the First Amendment requires and what its Establishment Clause forbids.
The lecture I delivered in February has now been published as an Essay in the UC Davis Law Review Online. For those readers too busy to click over to the link just supplied, here is the abstract:
Recent Supreme Court cases call into question the longstanding principle that the Free Exercise and Establishment Clauses should be construed to permit “play in the joints” between what the former requires and the latter forbids. That development is unfortunate both with respect to the Religion Clauses and more broadly. Play in the joints means interpreting potentially conflicting legal obligations to allow actors subject to them a range of options that are neither forbidden nor required. The concept can and should apply to various legal questions, including the permissibility of race-conscious student assignment, clashes between free speech and antidiscrimination laws, and much more. Play in the joints avoids placing regulated actors in damned-if-you-do–-damned-if-you-don’t scenarios. It promotes judicial humility, fair notice, federalism, and individual and institutional freedom. Given the value pluralism that the U.S. Constitution and laws embody, play in the joints is a vital tool for navigating inevitable clashes among legal obligations.
The Essay comes with some graphical representations of play in the joints as we have heretofore understood it and as it appears to be changing. Here, for example, is the graphic of the conventional understanding:
And here is the graphic of the direction in which Religion Clause jurisprudence seems to be trending, with the SCOTUS conservative supermajority expanding required free exercise accommodation and correspondingly shrinking both the domain of play in the joints and what the Establishment Clause forbids:
Perhaps even worse, however, the Court may have eliminated play in the joints entirely:
As my colleague Nelson Tebbe pointed out to me in comments on an early draft of the lecture/essay, however, the Court may have left some buffer zone but only as a one-way ratchet. Here's how I explain the point in the Essay, beginning with a caveat:
[S]ome accommodations that are not required by the Free Exercise Clause violate the Establishment Clause. For example, if a state or locality were to “accommodate” religion by mandating the daily recitation of a particular prayer in public schools, that would violate the Establishment Clause. But other accommodations are permissible. Under Employment Division v. Smith, states and their subdivisions may apply neutral laws of general applicability in ways that substantially burden the exercise of religion without triggering any heightened free exercise scrutiny, but states are free to require such scrutiny per state constitutional law, common law, or statutes similar to the federal Religious Freedom Restoration Act (RFRA), without running afoul of the Establishment Clause. Accordingly, [the second graphic] is probably a better depiction of the current state of the law than [the third one], so long as it is clear that governments may expand free exercise from the blue zone into the green zone but may not expand anti-establishment principles from the salmon zone into the green zone.
Although the Supreme Court's Religion Clause jurisprudence was the inspiration for the lecture and essay, my core argument goes beyond the Religion Clauses. I explain that there are numerous circumstances in which two or more legal texts appear to govern the same conduct--whether the conduct of state actors, as with the religion clauses, or private ones. In those circumstances, I argue that, other things being equal, courts should construe the various legal texts to provide breathing room (or play in the joints) for the regulated actors to exercise some discretion.
One of the leading examples I discuss concerns the intersection between the First Amendment and Title VI on college campuses. The Trump administration has misused Title VI, deploying it simply as a hammer with which to smash higher education (as I noted on Monday in connection with the recent ruling in the Harvard case), but even under the Biden administration, the Department of Education imposed obligations on colleges and universities that placed them in a nearly impossible situation. On one hand, it told them they must respect the First Amendment rights of pro-Palestinian protesters; on the other hand, it told them that even constitutionally protected free speech can give rise to a hostile environment due to antisemitism, which they were obligated to correct--even though the responsive measures identified seemed unlikely to do that. Here's the graphic I used to illustrate the resulting dilemma:
To be sure, in a conflict between a constitutional obligation and a statutory one, the constitutional obligation prevails. However, as I explain in the Essay, that priority rule applies only after one has determined the meaning and implications of the respective obligations. Although there is a well-known canon of statutory interpretation under which courts construe statutes to avoid constitutional infirmities, I give examples in which they sometimes do the opposite: they construe constitutional provisions to avoid invalidating important statutes.
My key normative point is that regardless of the status of a legal obligation (whether it is constitutional, statutory, or regulatory), courts should construe potentially conflicting provisions to avoid placing regulated actors on a knife's edge, where an error in any direction (including an erroneous prediction of how a court will eventually rule) will result in liability.
That's a summary, anyway. For the details and more illustrations, please check out the Essay.
-- Michael C. Dorf