The Siren Song of History: Originalism and the Religion Clauses

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more we are likely to find ambiguity--and with each step we take away from the promised land of historical clarity, we move a step closer to the richer, if less certain, terrain of historical truth. This essay reviews the following works: The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5; Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7

Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than satisfy the appropriate constitutional standard. Indeed, such a standard can help create a civil space where both robust advocacy and the freedom to avoid robust advocacy can flourish. This article makes four points about the Fourth Circuit’s decision in Snyder v. Phelps, each of which addresses the need to secure what is purely private from injurious speech. 1. The Fourth Circuit decided that the issues animating the protest of the Westboro Baptist Church (WBC) were matters of public concern. Of course, the “issue[s] of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens” are matters of public concern. But none of these is the issue whose publicness the Fourth Circuit was called upon to consider. That issue is whatever connection Matthew Snyder had to these matters. In the world of speech-based torts, whether a matter is one of legitimate public concern depends on the content, effect, and significance of the plaintiff’s conduct, not the subjective and unilateral assertions of the defendant. WBC must show that that connection is of public concern. Otherwise, every soldier, every Catholic, etc. (no matter how assiduously he or she has avoided the public fray) would be subject to targeted personal assault as long as WBC speaks under the mantle of some public concern (no matter how tenuously connected to the conduct of its target). 2. The Fourth Circuit’s decision turned on the court’s determination that WBC’s speech, even if it was not a matter of public concern, was mere rhetorical hyperbole (and, thus, not provably false; and thus protected opinion). Whatever sense this reasoning makes in the area of public debate, it creates a perverse incentive for WBC to be especially abusive and inflammatory: the more hyperbolically hateful the speech, the more it is constitutionally protected. This doctrinal borrowing from defamation makes little sense where the plaintiff brings an emotional distress claim. First, when the plaintiff’s claim is based on emotional injury caused by non-provable speech, the state’s interest in the protection of private personality is greater. The defamation plaintiff is injured by false statements of fact: where there is no provable factual assertion, there is little chance of reputational injury. No one will believe what is clearly hyperbolic rhetoric. But those same words can heighten a plaintiff’s emotional distress (and the more hyperbolic, the more the harm), whether or not the defendant’s message is verifiable. Second, the value of the speech at issue, and thus the need to offer it constitutional protection, is lesser. Statements meant merely to cause emotional injury to private plaintiffs bear only the most superficial resemblance to protected forms of speech. 3. There is no justification for applying the actual malice standard to emotional distress claims outside the public arena (and little enough inside). The literal application of the actual malice standard offers no protection to the plaintiff claiming emotional injury from rhetorically hyperbolic speech. The victim of a libel can show that the statement was false. The victim of rhetorical hyperbole can prove or disprove nothing that will bring judicial redress. This may be the cost of doing business in the public arena, but there is no reason why a private plaintiff should be left defenseless against emotionally injurious speech that serves no valid communicative purpose. 4. The availability of tort remedies for injurious speech is critical if private individuals are to peacefully exercise their own constitutional rights. The state has a substantial interest in protecting families’ “personal stake in honoring and mourning their dead” and in keeping the most intimate of moments from “unwarranted public exploitation.” Mr. Snyder should have the opportunity to show that WBC’s targeted picketing “was intended to cause him and his family substantial psychological distress,” not to disseminate a public message. Matthew Snyder died in service to his country, but the injuries that took his life left a legacy of trauma for his family. It is now the Supreme Court’s opportunity to decide whether our nation’s profound commitment to the contentious discussion of public issues is also a license for egregiously intrusive and injurious speech

When is Religious Speech Outrageous?: \u3ci\u3eSnyder v. Phelps\u3c/i\u3e and the Limits of Religious Advocacy

The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous? These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as much heat as light. On March 8, 2010, the Court granted certiorari in Snyder v. Phelps. It is a tort case brought by a family grieving the untimely death of their son. It is a free speech case, testing the boundaries of the constitutional commitment to the marketplace of ideas. It is a religious liberty case that has made unlikely allies of those on opposite sides of the political and cultural divides that make our liberal democracy such a challenging enterprise

Who Owns the Soul of the Child?: An Essay on Religious Parenting Rights and the Enfranchisement of the Child

At common law, and (for most of the nation\u27s history) under state statutory regimes, the authority of the parent to direct the child\u27s upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a sacred right to the custody of his or her child, that the parent\u27s right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation\u27s history—and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear—is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the empire of the father. If by fundamental we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them. The Supreme Court\u27s seminal cases establishing a parent\u27s right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child\u27s education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. The idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes. Courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program—whether the program is imposed by the parent or by the state—that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person\u27s education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of protection, ensuring that children receive a truly public education. Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority—and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under a perpetual childhood of prescription, they must be exposed to the dust and heat of the race—intellectually, morally, spiritually. A public education is the engine by which children are exposed to the great sphere that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future. The Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. Judicial non-intervention amounts to little more than a way of not dealing with such cases—or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny

Spiritual Custody: Relational Rights and Constitutional Commitments

Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, the Zummo family participated fully in the life of the Jewish faith and community. But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children\u27s attendance at Hebrew School during his visitation periods. Patricia Zummo, on the other hand, opposed exposing the children to a second religion. She was concerned that such a mixed spiritual message would confuse and disorient them. The Zummos brought their custody dispute to the Court of Common Pleas for Montgomery County, Pennsylvania. The facts of the Zummo case are distressingly typical of the spiritual custody dispute. With high rates of interfaith marriage and divorce, the subject of spiritual custody is certain to be one of continuing concern. To date, courts have treaded with great care on the uncertain constitutional landscape that underlies the competing claims of divorced parents who seek to control the religious education of their children. Of course, the best interests of the child are of central concern in custody cases. In spiritual custody cases, however, the First Amendment rights of the parents significantly complicate the judicial inquiry. Most courts have refused to restrain the noncustodial parent from exposing a minor child to his or her religious beliefs or practices absent a clear, affirmative showing that these religious activities will be harmful to the child. Nonetheless, it is argued that even this high degree of deference to parental authority is too open to judicial discretion. Critics of the best interests standard point to the constitutional hazards of such meddling in religious affairs--violations of either or both of the religion clauses of the First Amendment--and call for a direct prohibition of such consideration or some stricter version of strict scrutiny. I do not think ignoring these religious disputes is practically desirable. Growing up in the midst of a domestic religious civil war, given the special volatility of such disputes, is never in the best interests of the child. To leave this kind of conflict to the good intentions of feuding parents is to abandon the child to a Hobbesian space in which there is no law. The reluctance of courts to intervene in spiritual custody cases is reminiscent of an earlier era in family law where the state would not make its courts available for resolving disputes between husband and wife. The notion of family autonomy made women and children particularly vulnerable to unrestrained authority. Beyond protection against serious harm, children were subject to public neglect justified by the theory that only parents are responsible for them. Judicial deference in spiritual custody cases presents a similar risk of neglect, similarly masked as a matter of constitutional rights. Deference to family autonomy or parental free exercise rights in such cases may be a choice our society wishes to make, but it is not a choice that is constitutionally required. The right that people have to direct the spiritual upbringing of children, I will argue, is contingent on the commitment to the work of social ordering they have agreed to undertake as parents--that is, the right of religious parenting (1) is called into existence by a community of interests centered on the welfare of the child, and (2) may cease to exist when that community devolves into a contest of parental religious preferences

Epic Considerations: The Speech that the Supreme Court Would Not Hear in Snyder v. Phelps

In declining to consider the “epic” posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps. The Court may have sought to make this an easy case by considering only the contents of the church’s picketing placards. For the Court, the placards highlighted such issues of public import as “the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy.” On grounds that we might charitably call dubious, the Court chose not to “hear” those parts of the church’s speech that most clearly and most viciously attacked the Snyders—speech, that is, on matters of purely private concern. In deciding whether speech is on a matter of public or private concern, the Court is required “to examine the ‘content, form, and context’ of that speech, ‘as revealed by the whole record.’” Having determined the “content, form, and context” of Westboro’s speech without reference to half of the record, Justice Roberts was able to describe the church’s speech as “fairly characterized as constituting speech on a matter of public concern”—speech, that is, worthy of special protection under the First Amendment. What the Court apparently did not want to do was to tackle the question left unaddressed in Hustler v. Falwell: whether speech on a matter of public concern directed at a private figure may be actionable. Part public, part private, Westboro’s speech placed before the Court the difficult question of what protection to afford speakers who make a private party the unwilling instrument of their public message. The Court limited its holding to the facts of the case—the facts absent the epic; and on these facts the Court was content to characterize the church’s speech, fairly or not, as a public concern, thus avoiding the hard work of constitutionally culling wheat from chaff. The Court’s “central thrust” language effectively accommodates, for now, the concerns of those who, like Justice Breyer, worry that the Court’s conflation of public and private speech “unreasonably limits liability for intentional infliction of emotional distress.” Had the epic been before the Court, this accommodation may not have been possible. Snyder v. Phelps was not an easy case. When personal invective is delivered in the milieu of public discourse, it is no simple task to balance competing constitutional and common-law interests. No doubt, there is a point where speech purportedly on a matter of public concern is so personal in content and form that it loses public import, and if the personal attacks in Westboro’s epic, which addressed the Snyder family directly, do not reach this point, it is hard to imagine what would. But like many important legal boundary lines, this one is more often than not going to be difficult to draw

Making Sense of the Establishment Clause

While the jurisprudence of the Establishment Clause may not make much sense (common or otherwise) as a substantive legal matter, it does make sense as a series of jurisprudential maneuvers by which the Court has sought to make more room for religion in civic life. In fact, there is a method to the “massive jumble... of doctrines and rules” that forms the law of church-state relations. It is the method of a somewhat disorderly retreat from the Constitution’s foundational principle of disestablishment. The accommodations made by the Court to religious belief and conduct have allowed for discrimination against non-religion, edging the Court ever closer toward a non-preferentialist perspective..

Meyer, Pierce, and the History of the Entire Human Race: Barbarism, Social Progress, and (the Fall and Rise of) Parental Rights

This article examines the significance of the United States Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of the Sisters under the backdrop of shifting views on what constitutes appropriate state regulation of education. On its face, the question of how a state may regulate education may not seem so controversial. However, the idea that the state could mandate public education and take children from their parents conflicted with traditional views of family autonomy and parental authority. Progress would occur with the steady diminution of state authority, but under the guidance of the court. Part I of this article looks at what might be the most formative application of John Millar\u27s stage-theory to family relations. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural historian Henry Maine and the British moral philosopher Herbert Spencer. Part III posits two points: first, socialist history-making considered the dissolution of the bourgeois family as a key step toward a stateless state, and second, repudiation of the family was no mere doctrinal abstraction for American legal professionals. Thus, in recognizing the right to parent among those recognized at common law, Meyer and Pierce rewrote history

The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy

When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned. The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew’s funeral service. The church held signs that read, “You are going to hell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.” In the weeks following the funeral, the church posted on its website, godhatesfags.com, an “epic” entitled “The Burden of Marine Lance Cpl. Matthew Snyder.” Matthew’s burden, as the church saw it, was that he had been “raised for the devil” and “taught to defy God.” Matthew’s father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action). He was awarded $10.9 million in compensatory and punitive damages. That judgment, as such judgments against religious entities are wont to do, occasioned protest from First Amendment advocates concerned that, under the open-ended standard of outrageousness, “[l]iability easily ends up turning on how much juries condemn the speaker’s viewpoint.” Cautioned by the Supreme Court that “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it,” courts hearing outrage suits are on guard against breaches of objectivity that would disadvantage minority religions. However, to avoid the appearance of religious viewpoint discrimination, judges often resort to fine, almost scholastic, distinctions between what is secular and what is religious; between what is central to a religion’s belief and practices and what is theologically insignificant; and, even more tenuously, between what is belief and what is conduct. This is caution to a fault. These distinctions have produced a results-oriented jurisprudence that, paradoxically, involves the courts in precisely the kind of entanglement with religious affairs they seek to avoid, and does so while leaving ill defined the threshold that separates protected religious advocacy from religiously motivated conduct subject to tort liability. This essay argues that emotional distress claims are well suited to suggest the outer limits of civil tolerance for religious advocacy. Such tort suits serve socially valuable punitive and prophylactic functions, providing vulnerable individuals with a remedy against the most offensive and intrusive forms of religious conduct. That protection need not come at the cost of constitutional privilege for religious entities. Where no intra-church dispute is involved, the only question a court is obligated, and entitled, to consider is whether the religious entity’s conduct was of a type that no decent society should tolerate. Tort liability is not premised on the judgment that a religious belief is somehow “fundamentally flawed” or not worthy of constitutional protection. To the contrary, whether religious advocacy was meant to and did inflict severe emotional distress is a question that can be adjudicated by the neutral and generally applicable principles of tort law

DOES IT PAY TO SHROUD ADD-ON FEES?

Add-on pricing, also known as drip pricing, is a common practice whereby firms prominently post base prices yet are less forthcoming about add-on prices. Although some consumers find add-on prices before the purchase decision, others only discover the add-on prices later in the purchase process. This paper presents an analytical model predicting the profit and welfare implications of hidden add-on fees. Whereas practitioners posit that hidden add-on pricing benefits firms at the disadvantage of consumers, the consensus from the academic literature is that any gains from hidden add-ons are negated by competition in base prices. This paper has two main preliminary findings. First, it resolves discrepancy between theory and practice by finding a profit improvement effect of hidden add-on prices under circumstances for which prior literature predicts profit irrelevance. In this regard, the model identifies a new mechanism driving the profit-improvement result. Second, it finds when firms can be worse off by having more consumers uninformed of add-on pricing before choosing from which firm to buy. The findings have implications for managers considering hidden add-on pricing as well as policy makers who seek to regulate this practice