‘Common Law’ Episode 9: A Change of Faith at the Supreme Court


[MUSIC PLAYING] RISA GOLUBOFF: Hi and
welcome to Common Law, a podcast from the University
of Virginia School of Law. I’m Risa Goluboff, the dean. LESLIE KENDRICK: And I’m
Leslie Kendrick, the vice dean. [MUSIC PLAYING] RISA GOLUBOFF: So we’re
doing something a little bit different today, Leslie. LESLIE KENDRICK: We
are, very different. RISA GOLUBOFF: Actually, it’s
different in a number of ways, right? The first one is the topic. As our listeners
know, we’ve been talking about the future
of law this season. And mostly, though
not exclusively, that’s been about
technological changes coming, and how they affect the economy
and institutions on the law. But today, it’s going to be
more about our ideological and constitutional future. LESLIE KENDRICK: That’s right. But there’s another
difference, as well, that has to do with our guests,
and namely, how many of them there are and who they are. A couple of these folks are,
full disclosure, related to us, legally anyway. RISA GOLUBOFF: Legally related. It’s totally true. We know these guys pretty
well, as will become clear in a minute. But we actually do have a really
good reason for having so many. So these three
particular guests are in the studio all at
once today, and that’s because they’re all
experts in a major area of constitutional law that’s
likely to see some changes in the near future. LESLIE KENDRICK: Right. So a lot of commentators
looking at the Supreme Court think that its new
makeup could mean changes in the area of church and state. And that’s what these
three folks have been writing about
for quite a long time and they’ve been writing
about it together. So we want to talk with
them about the future of religious freedom
and the Supreme Court. RISA GOLUBOFF:
Yeah, I mean, it’s really a three-for-one deal. So should we let them
introduce themselves? LESLIE KENDRICK: Let’s do it. RICH SCHRAGGER: Well so
thanks for having me. I’m Rich Schragger. I’m a professor at
the UVA Law School, and I’m really
pleased to be here. I’ve been desperate to be on
this show for a long time. So I’m glad I’ve
finally made the cut. RISA GOLUBOFF: Is
there nothing else you want to add
about who you are? RICH SCHRAGGER: Oh, I happen
to be the husband of the dean, but that does not– [LAUGHTER] –that does not– this is– there’s no, yeah,
favoritism in this. RISA GOLUBOFF: That’s why it’s
taken so long, in fact, right? RICH SCHRAGGER: That’s
why it’s taken so long. That’s exactly right. NELSON TEBBE: I’m Nelson Tebbe. I teach at Cornell
Law School, and I happened to be in town,
in Charlottesville, and these fine people
included me in the podcast. I’m delighted to be here. MICAH SCHWARTZMAN: And
I’m Micah Schwartzman. I’m also a professor
at the University of Virginia School of Law. And I’m married
to the vice dean. So only Nelson is not married
to someone else in this room. NELSON TEBBE: Right,
in this room, yeah. RISA GOLUBOFF: But he is– as our kids would
say, he’s a kind of work spouse for
the two of you, which is why we wanted to have
all three of you on together. So why don’t you talk about
your collaborations and– and what it is you
all do together? MICAH SCHWARTZMAN:
Well, so the three of us have been writing about law and
religion issues for the past– I don’t know how many years now. Five or six years, maybe more. We’ve been writing articles– popular pieces, amicus briefs– about issues involving the First
Amendment and church and state. NELSON TEBBE: Yeah, it has
been informal, but consistent over these few years. And we’re interested in the
kind of common set of questions about the free exercise
clause of the Constitution, the establishment clause
of the Constitution, and various statutory and
regulatory provisions that– that embody values of
religious freedom and equality, how they interrelate. RICH SCHRAGGER: There have
been a lot of controversies in cases in this area. Folks might be familiar with
a case from a number of years ago called Hobby Lobby, which
was about whether there should be exemptions for a company
that had sort of religious views about contraception, and whether
they should have required exemptions from
providing contraception coverage for their employees. There was a case called Town of
Greece a couple of years ago, in which the question was
whether a city council can open the city council
meeting with a prayer when those prayers were
mainly Christian in content. And more recently,
there’s a case called Masterpiece
Cakeshop, which has been discussed in
the media, which is about whether a Christian baker,
who doesn’t want to provide a wedding cake for
lesbian and gay people, is permitted not to– not to
do so under the free exercise clause of the US Constitution. And so these issues are
really central these days, and quite salient. LESLIE KENDRICK:
You guys, in fact, have some sort of
agglomeration name, right? The three of you– I don’t remember
what it’s called. What do you call yourselves? RICH SCHRAGGER:
What is the name? It’s like Schwartz– MICAH SCHWARTZMAN: It’s TSS. And they vary between Tebbe,
Schwartzman, and Schragger, and Tebbe, Schragger,
and Schwartzman. It’s just a matter
of who started writing the thing first. RICH SCHRAGGER: Yeah,
who wrote the most– mostly Nelson writes
everything and we sign on. [LAUGHTER] Because it’s just– it’s just–
there’s safety in crowds, so it’s like– MICAH SCHWARTZMAN: It’s not– it’s not true, Schragger. Sometimes I write the stuff– RICH SCHRAGGER: Oh, that’s true. MICAH SCHWARTZMAN:
–and you guys sign off, or sometimes Nelson writes
the stuff and you sign off. [LAUGHTER] RISA GOLUBOFF: So you don’t do
any of the writing, Schragger? RICH SCHRAGGER: Well,
a pattern is emerging. [LAUGHTER] A pattern is emerging. RISA GOLUBOFF: You do
the talking, though. RICH SCHRAGGER:
Yeah, that’s right. I’m the face of
TSS, which is kind– we’re kind of a law firm. We’re like a little mini– yeah, it’s pretty awesome. LESLIE KENDRICK: A partnership. NELSON TEBBE: We have
been called TSS mostly by people who disagree with us. [LAUGHTER] When, in fact, we are
often STS or SST or– RICH SCHRAGGER: Right, right. That’s right. RISA GOLUBOFF: Well, let’s–
can we step back a little bit and talk? Just give the broad framework. Where do these
rules about religion come from in the Constitution? And they’re in the
First Amendment. We often think about the
First Amendment and speech, but the First Amendment has many
clauses in it, several of which have to do with religion. So tell us a little bit
about what those clauses say. MICAH SCHWARTZMAN: So
the First Amendment starts out by saying
that “Congress shall make no law respecting
an establishment of religion.” That’s the Establishment Clause. And then it says, “or
prohibiting the free exercise thereof.” We call that the
Free Exercise Clause. And the court has
body of jurisprudence under both clauses,
and they’re related to each other in various ways. The Establishment
Clause tends to focus on government
support of religion, either through symbols, or
sometimes through funding– through aid to
religious organizations. And the Free
Exercise Clause often focuses on what we think of
as freedom of conscience. Sometimes laws burden
people’s religious practice in different ways. And the question is,
should the government accommodate those practices? Should it grant exemptions,
for example, from general laws? And the court’s jurisprudence,
under both clauses, has been changing
in recent years. It’s been developing
in important ways. There’s been a shift in the
composition of the court. We’ve got new justices. Most recently, Justice
Kavanaugh, but also Justice Gorsuch. We don’t know exactly
what will happen in the court’s interpretation
of the religion clauses of the First Amendment,
the Establishment Clause and the Free Exercise Clause. And so part of what
we’re thinking about, and part of what
we’re arguing about, is the future of the
religion clauses. What’s going to happen
in how we govern the relationship between
church and state going forward? And that’s what these current
debates are all about. RISA GOLUBOFF: Can you
give us a little sense, before we get to the present and
the future, where we come from? What has been the
baseline before? NELSON TEBBE: Sure. I mean, the court has
a substantial body of jurisprudence on– as Micah said– with regard
to both these clauses. But it’s relatively
young, actually. The court didn’t start to hand
down decisions with respect to either Free Exercise or
the Establishment Clause that were consequential until
really after World War II, in the 1940s and ’50s. Once the Supreme Court decided
the provisions of the First Amendment applied
against the states, then the cases came kind
of fast and furious. And the court had
to figure out, what do these provisions entail? What do they require? Some of their entailments
were fairly obvious, right? So the government
can’t discriminate on the basis of religion,
against particular religious minorities, or really anyone. But some of them
were less clear. Here’s a big one. Do religious actors
get exemptions from general laws
that apply to everyone else just because
those laws conflict with their religious beliefs? That’s been a question
that the court has, as a constitutional matter,
vacillated on, to some degree, over time. RISA GOLUBOFF: So give an
example of some exemptions. What kinds of things
would be an exemption? NELSON TEBBE: Well,
for example, I mean, Rich mentioned the
Hobby Lobby case, right? So the Obama
administration, acting under authority of the
Affordable Care Act, had required all employers
of a certain type, who were providing health
care insurance, to include insurance for
contraception for women. And Hobby Lobby
said that conflicts with our religious beliefs. We don’t think that that law
should be applicable to us. We’re not asking the court to
strike down that law as applied to everyone else. We just don’t think
it should be applied to us because it burdens
our religious convictions. So that’s an exemption issue. And at first, under the
Warren Court, the court said, there is, presumptively,
a constitutional right to an exemption for religious
actors from general laws. But then later,
in 1990, the court reversed course
on that question. So then, after 1990,
the court said, there is not presumptively
constitutional right to exemption from general
laws for religious actors. LESLIE KENDRICK: And
that was a Justice Scalia opinion that said– NELSON TEBBE: It was, yeah. LESLIE KENDRICK: –neutral,
generally applicable laws, people have to follow. NELSON TEBBE: Right. The justices who signed
onto that new rule were sort of
cross-cutting, in terms of ordinary political
alliances and so forth. And now the thought is
that maybe the court is getting ready to change
course on that question again. There are a lot of
complexities here, but when we’re thinking
about just the broad history of the Free Exercise
Clause, the main point is we can see shifts. And we can look into the future
and anticipate further shifts. RISA GOLUBOFF: So what do
you think they’ll look like, and how far does that
depart from what you think they should look like? RICH SCHRAGGER:
Well, these are– [LAUGHTER] These are tough. RISA GOLUBOFF: Nobody wants
to answer that question. MICAH SCHWARTZMAN: We all
want to answer the question. RISA GOLUBOFF: I see, OK. MICAH SCHWARTZMAN: We’re on– we’ve written together
on these issues, and one of the positions
we’ve taken very strongly is that free exercise
exemptions are permissible under
certain circumstances. And in a wide array
of circumstances, they’re non-controversial. Listen, if it’s very
low-cost for the government to accommodate
you, the government should if you have strong
religious beliefs that conflict with government regulations. LESLIE KENDRICK: So
wait, just on that. What’s an example of
that, where it’s low-cost? MICAH SCHWARTZMAN:
So there was a case about beard length in prisons. And the prison
said, oh, you can’t have a certain length beard. And a religious inmate,
who said, no, this is part of my
religious belief system to have a certain beard
length, challenged that. And the court said,
there’s no good reason that the prison has given
for why the beard length here is different. And they treated
some other prisoners differently in regards to this. And said, listen, if you don’t
have a good reason, Government, then we– we’re not convinced
that this is something that should override
the religious conscience of the prisoner. And that seems
perfectly acceptable. We should try to accommodate
religious believers when we can. But our position has been, when
there are pretty significant costs on non-believers–
or people that don’t share your religion– and those costs are imposed
on those individuals, that’s a problem. And it’s a problem for
those individuals who have their own free
exercise rights, and it’s a problem
from the standpoint of the government putting a
thumb on the scale for one religion over another. RISA GOLUBOFF: So
I take it you think Hobby Lobby’s in that category. MICAH SCHWARTZMAN: Yeah, so we
think Hobby Lobby is wrongly decided, and have
said this repeatedly, which is in the
original case, there was– the decision
was based on this idea that, well, even though
Hobby Lobby won’t fund the contraception in this
case– or the insurance that would ultimately be used
by individuals who could choose to access contraception–
the government will fill in. There was a kind of mechanism by
which the government could then get that contraception
to the people that needed it without costs. It turns out, there were costs. And it turns out also,
the Trump administration has moved towards just
exempting religious businesses from contraception
without filling that in. So that means that’s an
enormous cost to the employees and their families who don’t
share that religion, who might have religious
beliefs otherwise, who don’t particularly abide
by those kinds of rules. And that’s an imposition of
religion on those people. LESLIE KENDRICK: So you guys
have called this a Third Party Harms argument. And the idea is
that, in this case, granting an exemption
to the employer imposes costs on third parties. Those parties being the
employees who want access to contraception, and
what’s standing in their way is the religious beliefs
of their employer. So how do the
wedding vendor cases fit into this, into your
Third Party Harm theory? NELSON TEBBE: So the federal
government and many states have statutory
protections for customers. They’re called Public
Accommodations Laws. And they protect customers
against being excluded from hotels, retail
establishments, and so forth, on the basis of certain
protected characteristics. Typically race, nationality,
gender, and so forth. LESLIE KENDRICK: Religion. NELSON TEBBE: And religion,
yeah, importantly. And in Colorado, the
Public Accommodations Law includes LGBT customers as
part of the protected class. So there was this baker. Jack Phillips is his name. He ran a bakery called
Masterpiece Cakeshop. And he encountered,
one day, a gay couple– two men– who came
into the shop, along with the mother
of one of the men, to inquire about a wedding
cake for their impending celebration. And when Jack Phillips saw that
they were a same-sex couple, he said, I’m sorry,
I can’t serve you because I have
religious objections to same-sex marriage. And the couple brought
an action arguing that this was a violation
of Colorado’s Public Accommodations Law. And the state entities ruled
in favor of the couple. Jack Philips’ argument
was, I deserve an exemption from this regulatory
regime because I have a strong religious
belief that prohibits me from serving gay couples. LESLIE KENDRICK: So you
can imagine that this– if these types of religious
exemptions were granted, then theoretically, you could
have business owners that refuse to provide service on
the basis of sexual orientation or on the basis of religion,
or on the basis of race, on the basis of gender, right? If you get religious exemptions
from this general law, you could have a
religious objection to serving people on any
one of those bases, right? MICAH SCHWARTZMAN:
We do actually have an example of this
already extending out beyond LGBT status. There is an adoption
service agency in South Carolina that
just refuses to serve people of other faiths. If you’re a Catholic
or you’re Jewish, this organization
refuses to work with you. And they’ve received a waiver
from the government, which allows them to
discriminate according to their religious principles. And so there is an
important question. If you can discriminate
against gay and lesbian people, can you discriminate
against other people who are also otherwise protected
by public accommodations laws like the one that exists in
Colorado and other states? So there is a really important
line drawing question that’s raised by these cases. But I would add, it’s not only
that they can’t get a cake, right? So one of the arguments
of Masterpiece Cakeshop is that the gay couple
could go down the street and get a cake
from another baker. Why can’t they go out and find
someone else in the market who will serve them? And an important part of
public accommodations law, of civil rights
law, is that people should have equal citizenship,
equal status in the market. We shouldn’t have to try to
figure out which companies, when we go out into the market,
will serve us and which ones won’t. In the civil rights era,
in the ’50s and ’60s, there was something
called a Green Book. It was a guide for
African-Americans to tell them which businesses would serve
them and which businesses wouldn’t. And we don’t think that the
market should work that way, that you should
have to have a guide to figure out who will
serve you and who will not. We should think of
each other as equals when we enter into
the marketplace, and we think that the religion
clauses of the First Amendment help to protect that
idea against challenges that are otherwise raised in the
form of religious exemptions. RICH SCHRAGGER: Yeah, this
is a really important point. So we talk about weddings
and wedding vendors and that kind of stuff. But weddings are stressful
and difficult and challenging, and there’s some folks– LESLIE KENDRICK: There are
people around the table who can attest to this. RISA GOLUBOFF: What weddings
do you have in mind? [INTERPOSING VOICES] RICH SCHRAGGER: Well, you
know, you go into the cake shop and your mother-in-law
is behind you, and they lay out all
the things to taste. You’ve been there, right? And you’re tasting the brown
cake and the white cake and the different flavors. And then you get into your
first fight about cakes before the weddings even–
you’re not even married and you’re fighting
about the cakes. And then you’re fighting
about the invitations. And then you’re fighting
about the tablecloths. And then you have to
decide whether you’re going to actually
go through with it or you’re just going
to elope and abandon those people who are
driving you guys– and leave the mother-in-law
behind, right? This is– right? This is now. Now, add to that– RISA GOLUBOFF: You
know this podcast is for public consumption, right? You know the mother-in-law
is going to be listening. RICH SCHRAGGER: I love
you, Mother-in-law. You’re fabulous. [INAUDIBLE] Very supportive. But you add to that– let’s say
you go in this shop and then the person tells you– MICAH SCHWARTZMAN: Wait,
where are you eloping to? You got to go some place, right? RICH SCHRAGGER: I know,
you got to go some place. LESLIE KENDRICK: Vegas. RICH SCHRAGGER:
They go to Vegas. It’s always Vegas. MICAH SCHWARTZMAN:
In Vegas, no one will discriminate against you. RISA GOLUBOFF: I was going to
say, Vegas takes all commerce. LESLIE KENDRICK: All
commerce, so to speak. RICH SCHRAGGER: But you might
have to go to Vegas, right? Because nobody will
serve you, or at least, add to that the stress
of then they say, well, we’re not part of– we’re not on board with this. RISA GOLUBOFF: They go
away and you have to go– RICH SCHRAGGER: You have
to go find somebody else. And maybe there’s somebody
else down the street. Maybe there’s not. But again, the claim on
the other side is, listen, the religious beliefs
are really important, and your stress and
your mother-in-law is not so important. And you should bear that cost
because religious conscience is so important. And again, we’re
not saying anything about the importance of
religious conscience. We believe strongly that
it’s quite important. But there’s religious
conscience on both sides here. And particularly
in the marketplace, which is a distinction
that we certainly draw. We’re not saying that
priests have to preside over same-sex marriages. That’s clearly not the case. Or religious organizations
have to change their religious doctrine to
embrace same-sex marriage. That’s, again, not the case. Those are very strict lines
that we want to abide by. But we are saying when
you’re in the market, you’ve got to serve, and just
serve at a basic baseline. LESLIE KENDRICK:
So you mentioned that Masterpiece
Cakeshop ended up going off on grounds
that had to do with the specifics of that case,
and the court didn’t really get to address the issues that
you guys have raised, which means those are still out there
and there are other wedding vendor cases in the pipeline. Where are we on that right now? MICAH SCHWARTZMAN: So the
Supreme Court, on Masterpiece, held that Jack
Phillips was entitled, in his particular case, to
refuse to serve a gay couple. And mainly because the court
found that the Colorado courts had not treated him fairly. That some of the members
of the Civil Rights Commission in Colorado
had made statements that were biased against
his religious beliefs, and it resolved the
issue on that grounds. What it didn’t do– and
this is the important part– it didn’t reach the substantive
question of whether, as a constitutional matter
under the Free Exercise Clause of the First Amendment,
Jack Phillips, or some other wedding vendor,
is entitled– has a right– to refuse to serve gay
couples because they have a religious
objection to participating in a same-sex
wedding celebration. And there are a
lot of other cases that raise that
substantive question. There’s a case pending
in Washington state called Arlene Flowers,
where a florist refused to provide flowers
for a gay marriage. And she says, look,
I’m willing to provide flowers for gay couples. I don’t discriminate otherwise. But in this particular
kind of case, right, when we’re
dealing with weddings, I don’t want to be
involved in gay marriage. I can’t be seen to
support gay marriage. I can’t be made complicit
in that practice. And there are cases involving
calligraphers and videographers and B&B’s that provide venues. If you’re going to
elope, you have to go off some hotel, some place, right? There are all these cases that
are percolating in the courts. There’s a case out of Arizona. There are other cases that
are coming up to the court. And eventually,
the Supreme Court is going to have to
address this question. They’re going to be
forced to come back around and to reach the question that
Masterpiece Cakeshop avoided. RISA GOLUBOFF: So we’ve been
talking about free exercise and the question of exemptions. But you guys also write about
the Establishment Clause, especially in the context
of monuments and statues and other symbolic expressions. And I thought maybe let’s take
a turn and turn toward those. So give us a little bit
of a context in which those cases often come up. RICH SCHRAGGER: So you want
to talk about even more controversial subjects. It’s super fraught. There’s a lot of– there’s
a lot of strong views on all kinds of sides and
the symbolic cases are really fraught too. And what we’re seeing is there’s
a case that’s– as we’re taping this– in the court about
whether a government-sponsored 40-foot cross in
Bladensburg, Maryland is OK, or whether that represents
an establishment of religion. The doctrine before this has
been this non-endorsement theory, which is that the
government can’t really– and isn’t supposed to– state religious truths, right? The government is not
supposed to endorse a particular religion or
express support for it. Religion is supposed to be for– not for the government. There’s just not–
they’re not supposed to be competent to
express religious truth. And that goes to symbolic
displays too, like a cross or some other kind of display. And that doctrine
is up for grabs, too, for the reasons
Micah has talked about. And in this cross case,
the Bladensburg cross case, we predict that the court will
say that cross is perfectly OK. And then we have to
ask, well, why is it OK? We have written together that
we’re not very comfortable with that kind of move. And Nelson tell
us why since he’s the author of all these things. LESLIE KENDRICK:
Tell us why, Nelson. NELSON TEBBE: Well,
there are lots of ways to think about how
the court could resolve cases to do with government
expression that seems to endorse religious symbols. And the one that we’ve been
attracted to– the one that Justice O’Connor articulated,
and that Rich described– is that it sends a
message that people who don’t share that religion
are somehow outsiders to the democratic community. Justice Kagan wrote an opinion
in the legislative prayer case that Rich described
earlier where she said, we don’t want a
situation where people stand before their government
not as just Americans, but as Jewish Americans or Muslim
Americans or Christian Americans. That’s sort of antithetical to
the idea of American democracy, where people just stand before
their government as Americans. So we’re worried
that the government’s endorsement of particular
religious symbols– in this case, the cross,
which is the central symbol of Christianity–
could have that kind of differentiating effect. But there are lots of
ways that the court could uphold the cross
and say that that’s consistent with our
constitutional traditions. One way is to say that
the cross is actually not a religious symbol. It’s a secular symbol. In this case, it was
erected in the early part of the 20th century as a
memorial for World War I veterans who had lived in
the area of Bladensburg. And so the court could
say, well, the content– the message– of the cross
is actually a war memorial and it’s not an endorsement
of Christianity. Another way would
be to say, no, it is an endorsement
of Christianity, but there is neutrality
because the town of Bladensburg has erected other monuments
around the cross that are secular in
content, and they’re a tribute to veterans of
other kinds of conflicts. There’s a Vietnam
Memorial and one for other kinds of wars that
are not as big as the cross, but they’re scattered
in the vicinity– the general vicinity–
of the cross. Another way, which was
suggested by Justice Breyer in the oral argument
about this case, would be to say it would
be a problem for a town to erect a 40-foot high cross
even as a war memorial today. But this cross has been
around for 100 years, and it’s kind of lost its
ability to divide Americans. We should grandfather
very old kinds of crosses. Also, it would be, as a
pragmatic matter, just divisive to start
taking down war memorials all across
America, right? So every cross that
was like this one would have to be
taken down as well. And that would be messy and
would lead to lots of conflict among Americans. So we should just
leave these crosses up, but recognize that it
would be unconstitutional for governments to erect these
kinds of memorials today. So there are these
kind of strategies that the court as explored
in its case law or in dissent and so forth. And the question really
isn’t whether the court will strike down this cross. It probably will not. But what kind of
strategy will it adopt to leave the
cross in place? LESLIE KENDRICK: So as we
record this, it’s June. It’s almost the end of
the Supreme Court term. We’re going to get a
decision about this in the next few weeks. Any predictions on which of the
paths that you just laid out they’re going to take? NELSON TEBBE: My strong
sense from oral argument is that Justice Breyer
will adopt this kind of grandfathering approach. And then the question
is, how many justices will be drawn to it? It’s conceivable, although
I’m not going to predict this, but it’s conceivable that
Chief Justice Roberts could sign onto an opinion like that. But I’m not sure. MICAH SCHWARTZMAN: The case
is important for a couple of reasons. One, there’s this
big cross in Maryland and there’s a question
about whether it should stay or whether it should go. But the case has
attracted more attention because it’s conceivable
that the court will jettison decades of
Establishment Clause jurisprudence. That it will use this case to
dramatically reshape the law. It will get rid of
the endorsement test that Justice O’Connor
laid out in the 1980s. It might do away with
the idea that there have to be secular purposes. It might adopt something that’s
been described as a coercion test that is the state only
violates the Establishment Clause when it actually
forces people to engage in some religious practice. A lot of jurisprudential
change could happen here. I think what Nelson is
suggesting is actually, the court will adopt a
much narrower approach. This is consistent, maybe, with
what Chief Justice Roberts has been doing more
recently, which is to take a more minimal,
case-by-case approach to controversial areas,
and to do things slowly, not to make dramatic
reforms in the doctrine. But the Establishment
Clause has long been thought to be chaotic. There are a lot
of different tests that are floating
around out there for determining when there’s
been an establishment clause violation. And especially
among conservatives, there is a demand that the court
clean up this area of the law and provide a clearer test. So the question is– part of the
question, anyway– is whether the court will take this
as an invitation to do that, or will it reach the
conclusion that the cross can stay on much narrower
case-specific grounds. And I think we’re all predicting
that the decision will be narrower. But there is this possibility–
and the strong likelihood is we’ll see versions of
these more radical arguments represented in
concurring opinions. RISA GOLUBOFF: As you
suggest, a lot of it rides on Roberts, right? On what attitude he
takes toward the case. MICAH SCHWARTZMAN: Yes. Although, because–
as Nelson mentioned– Justice Breyer has
a particular view, I think he can make a difference
in the outcome of this case. As interesting as what
the conservatives will do and how they’ll divide– whether
Chief Justice Roberts will agree with his more
conservative colleagues– is a question of what
will the more liberal and progressive justices
do in this case? And I think we’re expecting
Justice Breyer, maybe Justice Kagan, to join a
majority opinion allowing the cross to stay. And if I had to
guess, I would expect that we’ll see dissenting
opinions from Justice Sotomayor and Justice Ginsburg. And I think, among
liberals and progressives, there is a question of, how
should dissenting justices approach this
question, or justices who are uncomfortable
with the direction that the Establishment
Clause is heading in? I’ve argued– Nelson
and I have argued that those justices should
stake out strong dissenting positions, and should
lay out, for the future, an understanding of the
Establishment Clause that protects equal citizenship. And that says,
look, the government has no business endorsing
the primary symbols of a particular religious
faith, and here it’s a cross. There have been some
arguments– and Nelson, again, mentioned one of
these arguments– that the cross is
really a secular symbol. And I think that’s
a stunning claim. Justice Scalia said
something like this in a case called Salazar against Buono
in an exchange with an ACLU lawyer– a Jewish lawyer named
Peter Eliasberg, whose father was a veteran, where he says,
the cross is a war memorial, a secular memorial. And Eliasberg says
to him, I’ve never seen a cross on the tombstone
of a Jewish veteran. There was laughter
in the courtroom and Scalia was outraged
by the laughter, I think. And he said, no, no,
no, that’s not right. These crosses represent
all the war dead. And Eliasberg said,
no, they don’t. They don’t represent
Jewish war dead. Crosses don’t represent Jews. And there is an obvious
reason for that. It’s the central
symbol of Christianity. And those symbols
don’t represent the faiths of Jewish veterans. And that principle is
playing out here too. There is a question about what’s
the meaning of the symbol. RISA GOLUBOFF: And
my understanding is that there are
Christians who would also say, no, they don’t, right? The cross is the central symbol
of Christianity, and to call it a secular symbol would also
be demeaning of Christianity, right? And wouldn’t accurately
represent their view of their own religion. MICAH SCHWARTZMAN: I
think that’s right. There would be
religious arguments on both sides about the
meaning of the symbol, and Christians might object
to this understanding of it. That it trivializes the cross
to describe it in this way, as emptied of religious content,
as just a secular symbol. The other thing I
would say– and this is more specific to the facts
of the Bladensburg cross case, and it will be
interesting to see how the court deals with this. But there’s evidence
that, of course, there were Jewish
soldiers in War World I, and none of their names are
on the plaque in Bladensburg, even though some of the
names on that plaque come from Baltimore
or from other areas around that jurisdiction. And then there’s
a question, when they decided to use
a cross, did they also limit the group of
soldiers who it represents? RICH SCHRAGGER:
Yeah, the cross case is part of a larger
and a long-running– and we’ve talked a little bit
about this– a long-running question about
religious expression in the public square. So there are certainly
justices on the court now– I don’t know how many– who have critiqued the
endorsement test in the past, and would certainly be eager
to abandon it going forward. What they’re left
with is, then– Micah mentioned this–
this coercion test, which just says well,
there are no public symbols that would violate the
Establishment Clause. You can put crosses
up anywhere you want, or other religious symbols. What’s objectionable is if
you force people to pray, or you force people
to go to church, or you force people to pay taxes
to a church they don’t believe in– those kinds of things. That could open the door to
lots of religious symbols in the public square
that are dominated by certain kinds of
religious majorities. NELSON TEBBE: There’s
also a live example that I think carries a
lot of power for justices across the spectrum
of a place where government expression itself
on religious questions is definitely unconstitutional. And that is the example
of Great Britain, right? So Great Britain has an
established church, right? The Anglican Church is the
Church of England, right? And if the justices
agree on anything, I would expect they
would agree that we can’t do that in America, right? And the Anglican Church
is very tolerant, right? So religious freedom
is robustly protected. In Britain, much has
stipulated that that’s true. I think it is true. So this is really
just pure expression, and it’s even maybe accompanied
by other expression that says, everybody is welcome in
Great Britain, right? So people of all religious
faiths are welcome and we have an
established church. And I think the
justices would all agree that you can’t
do that in America, but it is purely
expressive in some sense. There is some money as well,
but I think today, it’s like a– it’s just something that the– you know, the nation has
endorsed as an official matter. And you can’t do
that in America. So if you’re going to hold
onto that intuition, which I think the justices
must, then you have to articulate an
establishment clause rule or doctrine that
accounts for that. And the coercion
test doesn’t seem to account for it because
the Church of England is not coercive, they’re
not proselytizing. And yet, definitely
unconstitutional, right? It’s like the actual
establishment. MICAH SCHWARTZMAN:
Look, the court just has lots of religion cases
coming to it now, right? There’s going to
be a lot of action on church-state doctrine. We’re going to see establishment
clause cases going forward, we’re going to see free
exercise cases going forward. There’s going to be a lot
of change coming our way. And we’re all
struggling and trying to think about what
it’s going to look like. LESLIE KENDRICK: So you’ve
laid out some of those issues for us, but we’re
going to see even more, and TSS is going to be very
busy for the foreseeable future. Is that right? MICAH SCHWARTZMAN:
We’re in business. [LAUGHTER] [MUSIC PLAYING] RISA GOLUBOFF: Well, thank
you all for being here. LESLIE KENDRICK: Thank you. RISA GOLUBOFF:
Especially Nelson, who traveled the furthest. NELSON TEBBE: Thanks very much. RICH SCHRAGGER:
Thanks for having us. MICAH SCHWARTZMAN:
We finally made it. RICH SCHRAGGER: I know,
it was really exciting. RISA GOLUBOFF: Was it all
it was cracked up to be? RICH SCHRAGGER: Yes. I’m star struck. RISA GOLUBOFF: If you’re
lucky, we’ll have you back. [MUSIC PLAYING] LESLIE KENDRICK: So we
covered a lot of ground, including the predictions
of TSS on what will happen on the Bladensburg cross case. That’s American Legion versus
American Humanist Association, which the Supreme Court should
be handing down imminently. RISA GOLUBOFF: Imminently. In fact, by the time
you listen to this, they may have already
done it, so you’ll be able to tell whether
those predictions were right and which ones. LESLIE KENDRICK: Yep. RISA GOLUBOFF: And of course,
thinking about the future, the wedding vendor cases
aren’t over either, and I want to go back a little
bit to Masterpiece Cakeshop. We don’t actually know not only
what will they do in religion, but even whether those
will be religion cases. Because we often think
that legal cases, or constitutional
cases, are only really about one issue and they’re not. And you actually
brief lots of issues, and the court might
address multiple issues. And in that case, there were
free speech concerns as well as religion issues, and I
think those will continue. And in fact, you and
Micah co-wrote an article in the Harvard Law Review
about Masterpiece Cakeshop, where you talked about
the free speech aspects and he was talking about
the religion aspects. Can you say a little bit
more about what those were, and what you wrote about? LESLIE KENDRICK: Yeah. So they were both Free Exercise
arguments and First Amendment freedom of speech arguments made
by the litigant in Masterpiece Cakeshop. And it wasn’t really clear
during the litigation which of these the case was
going to wind up being about. Is this going to be a case
about freedom of religion, or is this going to be a
case about freedom of speech? Both claims are active
at the same time. So Micah and I ended up
writing a piece talking about both of those things. It ended up being more
of a religion case than a speech case, but it
could have gone either way. RISA GOLUBOFF: So what
were the speech issues in Masterpiece Cakeshop? LESLIE KENDRICK: The
claim by the baker is that a cake is expressive. It’s an expressive product. So baking a wedding
cake is speech. And so a public
accommodations law that says you have to
serve gay customers is tantamount to saying
you have to provide this expressive product
that you disagree with. So the claim is that being
forced to provide this cake is a form of compelled speech
under the First Amendment, like the paradigm cases,
children being forced to say the Pledge of
Allegiance, which the Supreme Court ultimately determined
that that’s unconstitutional. RISA GOLUBOFF: And so
what did the court say? LESLIE KENDRICK:
So Justice Kennedy, writing for the majority, waved
his hands at this and said, there are serious issues
that come up with this. And it’s not really clear
what the stopping point would be of calling something
like cake-baking speech. But there also complicating
factors about how customized the cake is and
that kind of thing. So he suggested the
kind of anarchy problem that might come about
by saying that lots and lots of commercial
services are actually speech. But they end up not
going down that road, not trying to resolve
any of those issues. They, instead, turn to
the religious claims. But free speech
and religion claims do sometimes come up together. And I think you’re
right, that within constitutional
litigation, sometimes you never know where
the blow may fall. You don’t know what it is that
the court’s going to pick up on, and litigants
have lots of reasons to look through the
Constitution to find various claims that
they could make that frame the
issue that they’re having a little differently. RISA GOLUBOFF: And there’s
lots of litigation strategy by lawyers as to whether
you really focus in on one main argument, or
you throw the kitchen sink and you offer lots of
different arguments about it. And these kinds
of cases, I think, certainly have
multiple arguments trying to appeal to
different kinds of concerns and different justices. LESLIE KENDRICK: That’s right. And they have had
that for a long time. So just back to the Pledge
of Allegiance cases, that issue first came
to the Supreme Court in the late 1930s. And the issue of children having
to say the Pledge of Allegiance on pain of suspension
or whatnot, that was first framed
as a religion claim. And the court said– RISA GOLUBOFF: They were
Jehovah’s Witnesses. LESLIE KENDRICK: They
were Jehovah’s Witnesses. They said, we don’t– it’s
a form of idolatry to have to salute and pledge the flag. And the Supreme Court
rejected the claim. And then just a few years later,
in 1943, in the Barnett case, they picked up on the
speech side of this and said this is a form
of compelled speech. But there were religion
claims and speech claims from the very beginning
in this line of cases that Masterpiece
Cakeshop is a part of. RISA GOLUBOFF: It sounds
like your collaboration with your husband in
writing an article together went more smoothly than
my collaboration recently with my husband when we
were writing about Obama and the Supreme Court. But that’s for another day. That was totally fun
to do that with TSS. LESLIE KENDRICK:
That was really fun. More fun than writing
an article, really. I mean, writing an
article was fun. RISA GOLUBOFF: I agree. LESLIE KENDRICK: But
this was more fun, yeah. Yeah. RISA GOLUBOFF: Absolutely. Although I do feel a
little sense of loss because I feel like
our podcast time was kind of mysterious
and separate, and now they’ve seen
behind the curtain. LESLIE KENDRICK:
What we actually do when we go off
to do the podcast. RISA GOLUBOFF: Exactly. I worry about that. LESLIE KENDRICK: I think Rich
was more interested in what was happening. I think Micah was
just like, whatever. Just go– I’ll see
you when you get back. RISA GOLUBOFF: Yeah, but
I think maybe they also know it takes less
time than we had said, and so now we’re going to come
up with other excuses when– LESLIE KENDRICK: Shoot. RISA GOLUBOFF: –we’re,
oh, I’m too busy. I’m out there doing the podcast. [LAUGHTER] LESLIE KENDRICK:
Well, we can tell them it’s not always
as fun and smooth as it is when you have
TSS as guests, right? RISA GOLUBOFF:
That’s exactly right. LESLIE KENDRICK:
They saw the apex. RISA GOLUBOFF: What a pleasure. [LAUGHTER] Well, thank you
all for joining us. That’s it for this
episode of Common Law. We’d love to hear from
any listeners who are not married to us, so
please leave us a review and some stars
on Apple podcasts, Spotify, or wherever
you listen to the show. LESLIE KENDRICK: Or you could
tweet at us @CommonLawUVA. RISA GOLUBOFF: The
show is produced by Tyler Ambrose, Robert
Armengol, Tony Field, and Mary Wood. Special thanks to the Virginia
Quarterly Review and Virginia Humanities, where this
episode was recorded. I’m Risa Goluboff. LESLIE KENDRICK: And
I’m Leslie Kendrick. Please join us next time
for our season finale. RISA GOLUBOFF: Season finale. LESLIE KENDRICK: I know. And stay tuned for a new
round of shows and a new theme on our second season,
coming up in the fall. [MUSIC PLAYING]

2 thoughts on “‘Common Law’ Episode 9: A Change of Faith at the Supreme Court

  • This is an example of professors who are so smart they can't understand basic unalienable rights: "Accommodations," "Lines," "Important Questions, etc." Liberty is always under attack. Too bad these individuals don't measure up to the capacity of the school's founder, TJ. THUMBS DOWN. 👎

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