The Congressional Chaplaincies

Roughly twenty-five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not an \u27establishment\u27 of religion or a step toward establishment, but instead were simply a tolerable acknowledgment of beliefs widely held among the people of this country. \u27 That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history. The Court in Marsh looked only briefly at the history of the chaplaincies.2 A deeper look at that history reveals an American institution that is neither boring nor entirely benign. The chaplaincies have a remarkable, and a remarkably checkered, history. Sometimes, they have indeed been a source of unity for the country, as Marsh intimated. But they have also, at times, been a source of discord and dissension. Indeed, perhaps one lesson taught by the history of the chaplaincies is that they operate in the way one would expect any religious establishment to operate-when the government is empowered to act religiously, there is a natural but sometimes unenviable fight for control. The history of the chaplaincies is, at least in part, a history of that fight for control. In the last decade, this fight has reached a critical stage. While Marsh approved legislative prayer, it did so only with constitutional restrictions-restrictions which have themselves now become sources of constant litigation. In these modem battles, as was the case with Marsh itself, history plays an influential role. It is thus now more important than ever to bring to light certain episodes, some untold and some somewhat misremembered, in the history of the chaplaincies

Discrimination, Trump v. Hawaii, and Masterpiece Cakeshop

This short symposium piece is a comment on two of the Supreme Court’s recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.1 The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.2 One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on the Court and off it, conservatives seemed quicker to find actionable discrimination in Masterpiece, and liberals seemed quicker to find actionable discrimination in Trump v. Hawaii. This kind of statement should be qualified—we must be careful not to overstate things.3 But even so, anyone who reads these opinions will notice the trends. This symposium piece considers the two cases individually (as I was asked to do). Ultimately, it will defend the claim of discrimination in each, probably not straying too far from the Kagan/Breyer position. But this piece tries to offer some novel points, and throughout, it ponders some larger questions about the law’s response to cultural polarization. Perhaps Trump v. Hawaii and Masterpiece Cakeshop are interesting only in themselves. Or perhaps they signal a coming era where the Supreme Court differentiates sharply between discrimination claims of different kinds. This could happen in a variety of ways. The Court could begin superintending discrimination cases more closely—formally reducing the deference given to the discrimination findings of trial courts, or issuing more one-off decisions reversing lower courts failing to find discrimination (in preferred domains) or reversing lower courts finding discrimination (in others). Uniform trans-substantive rules about things like mixed motives, discriminatory taint, or judicial recusal might give way to domain-specific rules on each of these topics—with more protective rules in more protective domains. Finally, and most obviously, individual rights themselves might change. Weaker kinds of antidiscrimination rights might grow stronger, perhaps blossoming eventually into substantive rights— this could be what is about to happen with the Free Exercise Clause. For other rights, it might go the other way. But the past is always more certain than the future, so we start with Trump v. Hawaii and Masterpiece Cakeshop

Religious Exemptions, Third-Party Harms, and the Establishment Clause

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself. But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention, especially in light of Hobby Lobby. Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, who would have then lacked insurance coverage for certain forms of contraception. The employees would have had, in essence, to shoulder the cost of someone else’s religious commitments

Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor

Two terms ago, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court held that the First Amendment precludes ministers from bringing employment-related claims against their churches. In some ways, Hosanna-Tabor changed little. The lower courts had all reached that conclusion already, though the Supreme Court slightly expanded the breadth of the so-called ministerial exception. More important is how Hosanna-Tabor reconceptualized things, especially in how it pushed back somewhat against the Supreme Court’s imperial decision in Employment Division v. Smith, where the Court had broadly held that the Free Exercise Clause did not entitle religious believers to exemptions from generally applicable laws. Hosanna-Tabor could end up an isolated anomaly, a peculiar concession to the importance of ministers and the intrusiveness of employment discrimination laws, a railroad ticket good for one day and train only. But the Court’s opinion speaks of a broader principle, a principle whose boundaries it consciously puts off defining. And it is striking how so many decisions in the lower courts fall within Hosanna-Tabor’s principle. From employment discrimination law to labor law, from contract to tort, lower courts regularly dismiss all manner of cases in ways incompatible with Smith and for reasons akin to those given in Hosanna-Tabor. This Article looks at that universe of cases, reflects on some patterns that emerge, and works toward an explanation for what is happening and how courts should handle these issues

Second-Best Free Exercise

The future of the Free Exercise Clause is up in the air. Thirty years ago, in Employment Division v. Smith, the Supreme Court held the Free Exercise Clause only protected against religious discrimination and did not require exemptions from neutral and generally applicable laws. Yet despite having an official rule against religious exemptions, the Roberts Court has somehow managed to give religious exemptions in case after case. This illustrates Smith’s waning power—the case has become more of an obstacle for courts to work around than a precedent for courts to obey. But these victories have also come to shape free exercise doctrine in ways that few could have predicted and in ways the Smith Court might not even recognize. The Court’s new regime has many positive features. Its recent cases awarding religious exemptions have been based on a robust theory of equality that has genuine normative appeal. But these pluses go hand in hand with some negatives and some question marks. Smith’s core concepts have become deeply indeterminate and thus manipulable; other features make it particularly hard for religious minorities to bring claims; underneath it all lies the fact that general applicability is a concept that turns heavily on arbitrary factors, introducing a great deal of sheer luck into the process. Concerns about judicial restraint and federalism have been totally lost, and open judicial balancing of interests—the one thing Smith most sought to avoid—has been tacitly reintroduced through the back door. The Roberts Court has been making lemonade out of the lemon it was given, which is understandable. But the Court’s new theory of free exercise is a theory of the second best, and it bears the familiar scars of such theories. The Court could move to the narrowest form of Smith, one centered around intentional discrimination, which would be conceptually clean but would basically mark the end of free exercise. Another approach, and a better one, would be to throw off Smith’s shackles and dive back into a regime of religious exemptions. But either way, probably the one thing most difficult to imagine is that the Free Exercise Clause will stay the same for much longer