I think Smith was wrong. But those who think it right think so for a variety of
reasons. They may think the original public meaning simply didn’t include
exemptions, and think that unfortunate. They may not at all buy Scalia’s
argument about how terrible it is for judges to make judgments. Recall Bill
Marshall’s argument that the result was right but the opinion was a travesty.
Even if they rely on legislative oversight, they may think that in a
sufficiently clear or unpopular case, legislative oversight would come. State
legislatures have enacted plenty of RFRA exceptions, some of them reasonably
sensible and some of them deeply ill-advised. Most of these were part of the
initial enactment, but at least Illinois and Florida have enacted RFRA
exceptions in response to particular litigation. Supporters of both Smith and
RFRA may also think that the present legislative polarization will not last
forever, and sooner or later, it will be possible for Congress to legislate
again.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 18, 2015 6:12 PM
To: Law & Religion issues for Law Academics
Subject: Re: Jim Oleske's new review of book by Robert George
Dear Rick:
Yes, I think you are just echoing Mark and Eugene when you emphasize the
distinction between pre-Smith free exercise adjudication and RFRA adjudication.
Consider what Scalia says in Smith (pp. 885-890) about the normative and
institutional deficiencies of free exercise adjudication -- among other
concerns, the deep undesirability of "a system in which each conscience is a
law unto itself or in which judges weigh the social importance of all laws
against the centrality of all religious beliefs" (at 890). What makes this and
other concerns he expresses go away when the identical standards are being
applied under RFRA?
The argument to the contrary, as I understand it, is not about judicial
competence to apply those standards. How can judges magically become more
trustworthy or reliable when the identical power is being exercised under a
statute? Eugene's argument (which you and Mark have seconded) is not about
manageability or substantive soundness of those standards. Instead, it is all
about political accountability - that somehow RFRA adjudication is different
because of the possibility of legislative revision and control. As you
probably know, I have recently argued that this line of thinking is an academic
fancy, with no real world confirmation. See pp. 73-74 of "Hobby Lobby and the
Dubious Enterprise of Religious Exemptions,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466571. Reasonable people
can differ on this, of course, but public choice theory confirms the lived
experience -- at least before the recent conflict about marriage equality and
vendor discrimination, legislators would routinely vote for "religious freedom"
in the abstract, and leave to the judiciary all the particular choices of how
to apply RFRA's to each case. Legislators would get all the credit and none of
the blame for any bad choices. There has been no after the fact accountability
for legislative approval of a RFRA.
So I get why Mike Paulsen, Doug Laycock, and others are big fans of RFRA --
they think Smith was wrong, and that RFRA rightly restores some version of the
pre-Smith regime. But I don't get why you, Mark, Eugene and others cling to
this "Smith was right, but RFRA is good" trope. It rests on sand.
I will confess original ambivalence about Smith (i have written on both sides
of that -- critical of Smith in the early years, supportive more recently).
But I have been convinced from the beginning that RFRA was a mistake, and I am
only more convinced by 20 years of experience that the regime of RFRA, as
administered by judges and never supervised by legislatures, is unprincipled.
I hope this answers your question.
Chip
On Wed, Feb 18, 2015 at 2:25 PM, Rick Garnett <rgarn...@nd.edu
<mailto:rgarn...@nd.edu> > wrote:
Dear Chip,
I'm probably just echoing Eugene's earlier comment but, for what it's worth, I
think your claim that "[n]o one who embraced Scalia's description of limits on
the judicial role could be a fan of RFRA, unless perhaps it turned out that
RFRA helped his friends" might overstate things a bit and I wonder if you might
modify or qualify it.
As someone who thinks Smith is (basically) right in terms of what the First
Amendment requires and authorizes judges to do (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1880084) -- and who also
said "yay, RFRA!" after the O Centro decision
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931186), it seems to me
that one *could* (what's the joke about believing in infant baptism? "I've
seen it done"?) embrace Justice Scalia's concerns as applied to the judicial
role in constitutionalizing (or, creating constitutionally required) exemptions
while at the same time welcoming Congress's decision to invite judges to apply
-- in a politically revisable way -- RFRA's standard to generally applicable
laws.
That Congress and other legislatures are not often undoing judges' applications
of RFRA and RFRA-type laws does not, it seems to me, undermine the point. It
could simply mean that politically accountable actors, so far, basically
approve of the ways courts are responding to their invitation-to-accommodate.
All the best,
Rick
Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu <mailto:rgarn...@nd.edu>
To download my scholarly papers, please visit my SSRN page
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
Blogs:
Prawfsblawg <http://prawfsblawg.blogs.com/>
Mirror of Justice <http://mirrorofjustice.blogs.com/>
Twitter: @RickGarnett <https://twitter.com/RickGarnett>
On Tue, Feb 17, 2015 at 12:51 PM, Ira Lupu <icl...@law.gwu.edu
<mailto:icl...@law.gwu.edu> > wrote:
I doubt that most list members are very engaged in this tussle between Jim
Oleske and Robby George. George and his friends certainly seem very engaged,
though -- one might say they are more than a tad defensive in their responses
to Jim Oleske's rigorously argued (I repeat) review of George's book. As I see
it, the matter comes down to this -- George (unlike Michael Paulsen) was a big
fan of Emp Div. v. Smith. And George did call for practice specific
exemptions, when justified, by legislatures. But, to the best of my knowledge,
George (unlike Paulsen) never defended or championed RFRA until his
conservative Christian allies found comfort from it. George did not call for
RFRA's enactment back in 1992; he did not cheer when RFRA became law in 1993;
he did not lament City of Boerne in 1997; and he did not say "hurray for RFRA"
in 2006 when a unanimous Supreme Court upheld the RFRA rights of UDV members to
use hoasca tea in their sacraments.
And it's not surprising that George did not celebrate any of this -- the
distinction he makes between free exercise adjudication and RFRA adjudication
will not bear nearly the weight he now wants to put on it. Yes, we all know
that RFRA is a statute, subject to Congressional control. But we also know
that RFRA is effectively un-repealable; that Congress has never revised a RFRA
outcome; and most basically, that RFRA asks judges to perform the precise tasks
that Scalia asserted in Smith were outside the competence of judges. No one
who embraced Scalia's description of limits on the judicial role could be a fan
of RFRA, unless perhaps it turned out that RFRA helped his friends. I
understand that people can change their minds when their interests are
implicated, but a little humility (not accusations of "smear") seems in order.
On Tue, Feb 17, 2015 at 10:17 AM, Ryan T. Anderson
<ryantimothyander...@gmail.com <mailto:ryantimothyander...@gmail.com> > wrote:
One additional note on this. Mike Paulsen reports the following:
http://www.nationalreview.com/bench-memos/398692/friends-and-enemies-conscience-and-its-enemies-michael-stokes-paulsen
As it happens, last spring I had been invited by the Harvard Law Review Forum
to review Conscience and Its Enemies. ... In a somewhat surprising and
perplexing move, the editors of the Harvard Law Review Forum, perhaps noticing
that my draft was in the main supportive of George’s positions on many points —
and harshly critical specifically of a former president of the Harvard Law
Review (and current president of the United States) — informed me that they
would be soliciting a competing, rebuttal book review, to be published in the
same on-line issue, side-by-side with mine.
This struck me as more than a little bit odd. I had never heard of such an
arrangement before, in an academic journal — a solicited book review being held
up because, seemingly, the perhaps-surprised editors wanted to mitigate its
perspective by soliciting a countering book review. The move struck me as
blatantly (if not exactly shockingly) ideological. It is hard to imagine a
similar thing happening in the case of a solicited review of a book written by
a prominent liberal legal scholar that happened to be generally positive.
Ultimately, I withdrew, in part because of the crunch of time and in part
because of distaste over the transparent balancing-rebuttal arrangement. I was
ambivalent about playing along with such a game, and decided that I would
rather publish my own review, separately, in due course, somewhere else.
This may have been a mistake on my part. I was surprised to see that the Forum
went ahead and published a review essay of George’s book, written by the person
whom I understand was recruited to counter my own review. It is not a
particularly good review, relying more on political innuendo and ad hominem –
and on a basic mischaracterization of George’s position — than on reasoned
engagement of George’s actual arguments and actual views. George’s position is
wrong, Professor Oleske
<http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/>
asserts, because it is the argument of a conservative religious Catholic and
because (Oleske maintains, unpersuasively) it is not consistent with some of
George’s writings twenty-odd years ago. Oleske maintains that George’s defense
of rights of conscience must have been motivated by today’s controversies over
conscience and by George’s substantive views on those controversies (like
abortion and same-sex marriage), not by principle.
Oleske’s argument suffers from weaknesses in both its supposed factual
predicate and in its analytic structure. The factual-predicate problem is that
Oleske seemingly willfully misrepresents George’s positions. George
aggressively defends rights of religious conscience as a matter of political
principle and sound democratic policy, but does not believe that the Free
Exercise Clause requires such results as a judicialrule. (I disagree with
George on this last point of specific constitutional interpretation, but that
is beside the point here; reasonable people can defend expansive views of the
political and natural right to freedom of religious conscience but still deny
that the Free Exercise Clause vests judicial actors with authority to grant
religious exemptions from neutral, generally applicable laws.)
Oleske simply conflates the two distinct propositions, disregarding a basic
distinction by selective quotation. Thus, Oleske misrepresents George as having
changed his position over time and with changed issues. No: George simply
distinguishes between what institutions — political actors or courts — should
make the needed accommodations of religious conscience.
The analytic-structure problem is obvious. Even were it the case that George
had altered his position over the course of 25 years (which would not be a
shocking thing to do, even if true), that would be no argument that George’s
present position is wrong; it would only establish that that position is
different.
This is not the place to engage at length the shortcomings of Oleske’s review.
Professor George has already taken care of the business himself, in his
characteristically honest, fair, witty, and simultaneously devastating
<http://www.thepublicdiscourse.com/2015/02/14430/?utm_source=The+Witherspoon+Institute&utm_campaign=78a49fc0d0-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-78a49fc0d0-84099261>
rejoinder.
On Wed, Feb 11, 2015 at 12:48 PM, Ryan T. Anderson
<ryantimothyander...@gmail.com <mailto:ryantimothyander...@gmail.com> > wrote:
Thanks for calling our attention to this review. The list might find George's
response worth reading. Here's the opening:
http://www.thepublicdiscourse.com/2015/02/14430/
The Oldest Trick in the Book Reviewer’s Book: On Misreading Conscience and Its
Enemies
by <http://www.thepublicdiscourse.com/author/rgeorge/> Robert P. George
February 11th, 2015
James M. Oleske’s “review” of my new book is no review at all. It’s an
intellectually dishonest hit piece.
The ad hominem attack is the oldest trick in the debater’s manual. When you
can’t—or for whatever reason won’t—engage your opponent’s actual arguments, you
try to discredit him personally. Perhaps you mock his accent, or point out that
his pants are too short or that his socks don’t match. Or you try to smear him
as a shady character or a hypocrite. Or you try to show that whatever he is
saying, right or wrong, is ill-motivated—perhaps a matter of sheer political
expediency. The shrewdest way to buttress an argument ad hominem is to create
an appearance of engaging an opponent’s arguments while so distorting his view
that a caricature takes the place of the original.
Lewis and Clark University law professor James Oleske deploys the last of these
stratagems in
<http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/> a
review of my book Conscience and Its Enemies: Confronting the Dogmas of Liberal
Secularism. He suggests that I have quietly, and all too conveniently, changed
my tune about whether we should provide conduct exemptions from general,
neutral laws that burden religious activity. Professor Ira Lupu, whom Oleske
thanks in a note for helping with the review, circulated a link to it, touting
it as “rigorously argued.” But a review cannot be rigorously argued if it
falsifies key positions of the author whose work is being reviewed.
The falsifications in Oleske’s review don’t tarry in making an appearance—they
begin in a summary headnote: “Robert George, once a skeptic of
religious-exemption rights, now demands their unprecedented expansion.” This
alleged switch, Oleske suggests, was unacknowledged and opportunistic: I
supposedly started supporting conduct exemptions only when—and because—my
fellow conservatives’ consciences were burdened by issues surrounding same-sex
marriage and the implementation of the contraceptive mandate of the Affordable
Care Act.
But this little tale has the very considerable disadvantage of being
demonstrably false. I made no switch. Oleske maintains the contrary illusion,
across several pages of commentary on my work, only by conflating—egregiously
and at every turn—the Constitution with political morality. I have always
supported religious conduct exemptions as a matter of good and just policy
while denying that the Constitution’s Free Exercise Clause requires or
authorizes judges to mandate them. Oleske’s review ignores or overlooks this
simple but key distinction in a remarkable series of omissions (sometimes of a
single word) and tendentious descriptions of my work.
read the rest here: http://www.thepublicdiscourse.com/2015/02/14430/
On Thu, Jan 22, 2015 at 2:40 PM, Ira Lupu <icl...@law.gwu.edu
<mailto:icl...@law.gwu.edu> > wrote:
I want to call the list's attention to Jim Oleske's rigorously argued, just
published review of Robert George, Conscience and Its Enemies: Confronting the
Dogmas of Liberal Secularism (2013).
The web link is here,
http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/, and
the print-friendly pdf is here:
http://cdn.harvardlawreview.org/wp-content/uploads/2015/01/vol_128_Oleske.pdf
--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053 <tel:%28202%29994-7053>
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053 <tel:%28202%29994-7053>
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
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