My co-authors Geoff Manne and Julian Morris have a column today in Canada’s National Post “Why Canada’s debit card system doesn’t need any more controls.” It is based on our recent study issued through the Macdonald-Laurier Institute. [...]
(For an introduction to this series of posts, see here.)
We can now get to what I think should be the heart of the case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” I don’t know what the answer to that is, because this test is so undefined; my thinking here is also quite tentative, and I’m certainly open to being persuaded. But I thought I’d post today about three possible interests — protecting health, providing for sex equality, and protecting newly created private rights — and say a few words about them.
1. This post focuses on the interest in protecting health. Under RFRA, it’s not enough for the government to point to how the Affordable Care Act writ large supposedly protects health. Nor is it enough for the government to point to how the coverage for contraceptives generally would protect health. Rather, the question is whether denying the limited religious exemption that is being sought here — the exemption for the particular potentially implantation-preventing contraceptives to which the claimants object — would undermine a compelling interest in protecting health, so that denying the exemption would be the “least restrictive means” of protecting health. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.”
Moreover, the “least restrictive means” requirement shows that the existence of a compelling interest isn’t enough. Under RFRA, the government must consider creative ways of serving its compelling interests while at the same time accommodating, to the extent feasible, religious objections.
2. It seems to me that a compelling interest in [...]
From Max Boot (Commentary):
[T]he largest part of the explanation for why South Africa is light years ahead of most African nations — why, for all its struggles with high unemployment, crime, corruption, and other woes, it is freer and more prosperous than most of its neighbors — is the character of Nelson Mandela. Had he turned out to be another Mugabe, there is every likelihood that South Africa would now be on the same road to ruin as Zimbabwe. But that did not happen because Mandela turned out to be, quite simply, a great man — someone who could spend 27 years in jail and emerge with no evident bitterness to make a deal with his jailers that allowed them to give up power peacefully and to avoid persecution.
Mandela knew that South Africa could not afford to nationalize the economy or to chase out the white and mixed-raced middle class. He knew that the price of revenge for the undoubted evils that apartheid had inflicted upon the majority of South Africans would be too high to pay–that the ultimate cost would be borne by ordinary black Africans. Therefore he governed inclusively and, most important of all, he voluntarily gave up power after one term when he could easily have proclaimed himself president for life….
His example should dispel any illusions, so popular in the historical profession, that history is made by impersonal forces. Mandela’s example is a ringing endorsement of what is derisively known as the “great man school of history” — the notion that influential individuals make a huge difference in how events turn out. He certainly made a difference, and for the better. He will go down as one of the giants of the second half of the twentieth century ….
Eric Crinnian, a lawyer, heard a loud banging at his door Monday night, he was instantly alarmed since a neighbor’s house was robbed a few weeks ago, so he grabbed a crow-bar.
Crinnian said three police officers were outside his house.
“I open the door a little bit wider and he sees that I have something in my hand, so he pulls his gun, tells me to put down whatever I’ve got and then come out with my hands up, so I do,” Crinnian said.
They wanted to know where two guys were, and Crinnian later found out police believed they violated parole.
“I said, ‘I have no idea who you’re talking about I’ve never heard of these people before,’” he said.
To prove it, he said police asked to search his house, Crinnian refused multiple times. He said they needed a warrant.
Then he said one police officer started threatening him saying, “If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs, who are my family, and then we’re going to ransack your house looking for these people.”
Criminal justice professor John Hamilton contends that the police officers’ conduct here was probably legal, though “inappropriate.” George Washington University law professor Jonathan Turley argues that it was illegal, and that charges should be brought against the officers if Crinnian’s story is true. I would add that it is clearly unconstitutional for police officers [...]
I suggest that in fact, they [ultra-Orthodox and leftists who are hostile to the existence of Israel] do share a common Jewish theme. This theme was articulated by the great Israeli scholar of the Jewish religion, Gershom Scholem, who argued that the price that the Jewish people paid for their development of the Messianic idea was their own “exit from history.” During the long history of the Exile the Jewish people imagined a Messianic, redeemed world of perfect justice, perfect national restoration, perfect relationship to God and religious observance. They could develop this idea precisely because they were removed from “history” – they could not participate as a national collective in world politics, in world culture and in the endeavors of building a state, developing a national economy etc. Thus, on the national level they did not have to deal with the inevitable, mistakes, compromises and wickedness which is necessarily part of any concrete action in the world. Instead they could develop one of the most important Jewish contributions to the human spirit – The Messianic Idea. But, as Scholem points out, there was something profoundly unreal about Jewish life in the Exile.
Zionism was one of the most profound revolutions in Jewish life. It constitutes, as Scholem defined it, a departure from the Messianic Idea to the realm of history. Once Jews enter the realm of history by building a Jewish state they necessarily become implicated in a life that is less than ideal – they become implicated – simply by the fact of action in the real world – in injustice, in moral compromises, corruption and other ills and wrongs. They can no longer cling to the perfect justice and perfect religion of the Messianic Idea. But here is the rub:
The Khayelitsha United Mambazo Choir performs Nkosi Sikelel’ iAfrika.
I’m sure the legislatures aren’t thinking of the bill this way, but it might well be what this bill — which cleared one New Jersey Senate committee by a 5-0 vote this summer, and which unanimously passed another committee today — would do. The bill provides, in relevant part,
1. a. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …
(2) sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person ….
If Larry Flynt had posted his nasty attack on Jerry Falwell online in New Jersey — assuming the Internet and this law were around back then — he would likely have been committing a crime. He might have had “the purpose to harass” Jerry Falwell, whatever that precisely means. The scurrilous parody said “about” Falwell, which talked about Falwell supposedly having sex with his mother, may well have been “indecent,” again whatever that precisely means.
Seems pretty certainly unconstitutional to me. For an example of a similar Washington law being used to try to uncover the identity of someone who published a YouTube cartoon satire of City of Renton police officers — an attempt that was premised on the theory that such publication was indeed criminal harassment, because of its supposedly lewd, indecent, or obscene references to sexual goings-on among the officers. (The matter was ultimately dropped after a public outcry.) [...]
I wrote this for the Manhattan Institute’s excellent Minding the Campus site, and figured I’d repost it here.
From the bowels of academia comes news that the National Council of the American Studies Association has voted in favor of boycotting Israeli institutions. The boycott resolution goes to the full membership for an up or down vote.
The National Council’s vote has been hailed as a huge victory for the Boycott, Divestment, and Sanctions (BDS) movement. It’s not. As originally proposed, the boycott was to apply to individual Israeli scholars, who, for example, wished to participate in the ASA’s annual conference, if they received Israeli government or university funding. Since few Israeli scholars would have the means to travel to the U.S. without funding from their university, that would have been a meaningful means of exclusion.
Instead, the final resolution is limited to a refusal to by “the ASA in its official capacities to enter into formal collaborations with Israeli academic institutions, or with scholars who are expressly serving as representatives or ambassadors of those institutions.” So there is no call for a boycott by the membership acting as individuals, and no exclusion even by the ASA of normal cooperation with Israeli scholars.
Pretty Thin Gruel
Compared to the BDS movement’s official call for a “comprehensive and consistent” boycott of anyone affiliated with an Israeli academic or cultural institution, this is pretty thin gruel, unlikely to affect almost anyone. Even then, to get the resolution through the executive committee advocates had to agree to a membership-wide vote.
So the good news is that even in the far-left reaches of American academia, in an organization proud to name one of its awards in honor of ex-Black Panther and ex-Soviet stooge Angela Davis (two-time vice-presidential candidate for the Soviet-controlled Communist Party USA), [...]
(For an introduction to this series of posts, see here.)
On then to another general argument — the argument that, regardless of the specific interests the government asserts in support of the employer mandate, those interests don’t count because the law has secular exceptions. One version of the argument is that such exceptions make the law “underinclusive,” and thus prove that the government interest can’t be compelling. A related version is that, under RFRA, religious exemption claims are entitled to be treated as well as the most favored other claims for exemption. Here is how the Tenth Circuit en banc majority opinion in Hobby Lobby put it:
The government asserts two interests here: “the interests in  public health and  gender equality.” We recognize the importance of these interests. But they nonetheless in this context do not satisfy the Supreme Court’s compelling interest standards….
[T]he interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than fifty employees [who don’t have to provide any health insurance -EV], and, under a proposed rule, for colleges and universities run by religious institutions. As the Supreme Court has said, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi; see also O Centro (citing Lukumi as instructive in determining whether exemptions undermine a compelling government interest for purposes of RFRA). The exemptions at issue here would yield precisely this result: they would leave unprotected all women who work for exempted business entities.
Now it’s not clear to me that all the exceptions “leave appreciable damage to [both] [...]
I’ve argued below that, if someone believes that it’s religiously wrong for him to be complicit in certain behavior, requiring him to act in such a way is a “substantial burden” on his religious practice under RFRA. This is true even if you and I might define complicity differently, and might view the particular actions involved in the case as too indirect to constitute complicity. Some readers have asked: What then does the qualifier “substantial” do?
Here’s a general summary of how the Court has defined “substantial burden”:
1. Requiring people to do something that “is forbidden by [their] faith” qualifies as a substantial burden on religious practice. See, e.g., United States v. Lee (1982); Hernandez v. Commissioner (1989). So does requiring people not to do something that is required by their faith. Indeed, even requirements that people do something forbidden by their faith in order to get important benefits (such as unemployment compensation) are generally a substantial burden. Thomas v. Review Bd. (1981). Requirements that people do something forbidden by their faith to avoid punishment, including fines, are at least as clearly substantial burdens.
2. “While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas. And that is so even where the relevant “conduct proscribed by a religious faith” is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court. Id.. “It is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one.” Id.
3. What, then, is not a substantial burden? To give one example, “to the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is [...]
(For an introduction to this series of posts, see here.)
So far, I’ve argued that Hobby Lobby likely has a good case as to the claim that the employer mandate substantially burdens religious exercise, because the mandate requires Hobby Lobby to do something — fund potentially implantation-preventing contraceptives — that Hobby Lobby’s owners believe is religiously forbidden. But of course not all substantial burdens on religious exercise require an exemption under RFRA. RFRA provides that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … is the least restrictive means of furthering [a] compelling governmental interest.” And this “compelling interest test” (also known as “strict scrutiny”) seems to refer to the test “set forth in prior Federal court rulings” decided under the Free Exercise Clause during the Sherbert/Yoder era.
This, I think, is the most unpredictable part of the Hobby Lobby case, because prior rulings are largely unclear on what constitutes a “compelling governmental interest,” and what the “least restrictive means” requirement means. Moreover, while the strict scrutiny test in race and free speech cases has generally been seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, this hasn’t been so in religious exemption cases.
Larry Sager and Chris Eisgruber labeled the religious exemption strict scrutiny test “strict in theory, feeble in fact,” and while the Court’s one RFRA case — Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) — seemed to use strict scrutiny in a moderately muscular way, the most we can say is that religious objectors will sometimes win under the test and sometimes lose. In the coming posts, I’ll try to mine the religious exemption precedents for what insight they can [...]
Joe Asch has an interesting analysis of returns on university endowments over time (focusing on Dartmouth but comparing Dartmouth to over Ivy League institutions), comparing the returns of actively-managed endowments with those with a simple 60/40 equity-bond split. He notes that while actively-managed endowments beat the benchmark for the past year over the past five years it hasn’t done so well comparatively:
However, over a five-year span, despite active management by Trustees and the College’s investment staff, we underperformed a 60/40 equities/bond allocation by 1.8% annually. The only major endowment to beat the 60/40 allocation was Columbia, and its performance was only 0.6% annually above that of a plain vanilla strategy.
He also notes that Ivy League universities pay their chief investment officers annual salaries ranging from $673k at Cornell to over $5 million at Harvard.
I contributed one chapter to this collection of essays. Not surprisingly, I wrote about Lochner and liberty of contract jurisprudence, and its uneasy relationship to constitutional conservatism.
It’s an excellent book on an understudied topic. The one major impression I get from studying this general topic is that while the Progressives knew to a large extent where they wanted to take the country and the Constitution, conservatives of the day didn’t have their own positive ideology, but were simply trying to preserve what they saw as traditional American values of federalism and individual liberty against the Progressive wave. Not surprisingly, they failed, just as the Burger Court and (especially) the (early) Rehnquist Court, products of a defensive conservatism with little positive agenda, failed to roll back the liberal tide.
Unfortunately, the book costs $82.00, so few readers are going to add it to their personal collections, at least until a paperback (hopefully) arrives. But if the subject matter interests you, you should check it out at your local academic library, and ask the librarian to order it if they don’t already have it.
UPDATE: Here is a Table of Contents:
Introduction: Johnathan O’Neill and Joseph Postell
1. Constitutional Conservatism During the Progressive Era: The National Association for Constitutional Government and Constitutional Review; Johnathan O’Neill
2. The Progressive Origins of Conservative Hostility to Lochner v. New York; David E. Bernstein
3. William Howard Taft and the Struggle for the Soul of the Constitution; Sidney M. Milkis
4. The Election of 1912 and the Origins of Constitutional Conservatism; William Schambra
5. William Howard Taft on America and the Philippines: Equality, Natural Rights, and Imperialism; John Grant
6. Civilization versus Modernity: The League of Nations in the Crisis of World Civilization; W. Taylor Reveley
7. ‘Roaring’ against Progressivism: Calvin Coolidge’s Principled Conservatism; [...]
The old Cold War export control alliance, now known as the Wassenaar Arrangement, hasn’t exactly been a hotbed of new controls since Russia joined the club. But according to the Financial Times, the 41-nation group is preparing a broad new set of controls on complex surveillance and hacking software and cryptography. I suspect that the move is a response to concerns about the use of such tools — from deep packet inspection to zero-day attacks — by rogue states like Syria and Iran.
It’s an unusual step in several respects. First, the European Union seems to be at least as enthusiastic as the United States about the controls. Usually, Europeans have let the US take the lead (and the economic hit) when it comes to controlling exports. Second, it is not clear that these controls will work. Wassenaar doesn’t include China or Israel, both major producers of surveillance and hacking tools. So the new control regime could turn out to be an exercise in moral preening, as Europe and the United States sacrifice technology sales to China and Israel for the sake of political correctness. [...]
I’d like to get some good nonfiction audiobooks, preferably about history — any suggestions? I’d be particularly interested in history of science, technology, or medicine, but I’m flexible. Good science audiobooks might work, too. This would be for my 10-year-old and me to listen to in the car; he’s fine with audiobooks aimed at adults, but the topic and the presentation have to be engaging enough to keep his interest (and, to be candid, mine). [...]