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Coase and Accommodation: A Reply
No full textMany years ago, when I was a fresh-faced appointments candidate hoping to teach constitutional law, my dean at USC recommended some reading to ease me into the scholarly flow. One suggestion—which I took—was The Constitution, the Courts, and Human Rights.[1] I never imagined its author would become a mentor, colleague, and friend.
Several years into my first appointment at a law school in the rural South, I received a note from Michael (whom I had not yet met) telling me that, in a recent speech, he’d quoted something I’d published—a small but characteristically generous gesture that meant everything to a young scholar toiling in evident obscurity. Michael helped and encouraged me over the years, in ways large and small; I have watched him do the same for many others. He will leave behind scholars as well as scholarship.
There is, to be sure, plenty of scholarship. It is at once inspiring and humbling to see a scholar so fully commit himself to the same problem through a long and successful career. Michael’s work has made a difference—the most a scholar can ask—by providing moral justifications for human rights in a world seemingly bereft of both. Though I have never gotten used to his very long footnotes, I have learned from the depth of what he writes and the care with which he writes it.
While I am honored to participate in this Festschrift for Michael, I am blessed to be his friend. Some years ago, my son Alex passed away while attending a university where Michael was on the faculty. Nicea and I have never forgotten Michael’s kindness and concern for us and our daughters, then and for years after. He made a difference for us
Coase and Accommodation: A Reply
No full textMany years ago, when I was a fresh-faced appointments candidate hoping to teach constitutional law, my dean at USC recommended some reading to ease me into the scholarly flow. One suggestion—which I took—was The Constitution, the Courts, and Human Rights.[1] I never imagined its author would become a mentor, colleague, and friend.
Several years into my first appointment at a law school in the rural South, I received a note from Michael (whom I had not yet met) telling me that, in a recent speech, he’d quoted something I’d published—a small but characteristically generous gesture that meant everything to a young scholar toiling in evident obscurity. Michael helped and encouraged me over the years, in ways large and small; I have watched him do the same for many others. He will leave behind scholars as well as scholarship.
There is, to be sure, plenty of scholarship. It is at once inspiring and humbling to see a scholar so fully commit himself to the same problem through a long and successful career. Michael’s work has made a difference—the most a scholar can ask—by providing moral justifications for human rights in a world seemingly bereft of both. Though I have never gotten used to his very long footnotes, I have learned from the depth of what he writes and the care with which he writes it.
While I am honored to participate in this Festschrift for Michael, I am blessed to be his friend. Some years ago, my son Alex passed away while attending a university where Michael was on the faculty. Nicea and I have never forgotten Michael’s kindness and concern for us and our daughters, then and for years after. He made a difference for us
Narrative Pluralism and Doctrinal Incoherence in \u3ci\u3eHosanna-Tabor\u3c/i\u3e
No full textThe federal laws prohibiting employment discrimination are among the most important statutes ever enacted. They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.
The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire leaders, thus avoiding (what we might hope are) hypothetical absurdities like a Baptist minister who sues because no synagogue will hire him as its rabbi. The laws do not, however, generally exempt churches from statutory sanctions against racial, national-origin, sex, or disability discrimination when they deal in the employment of ministers and other church leaders. By their terms, the federal anti-discrimination laws would prohibit the Roman Catholic Church from discriminating on the basis of sex in filling positions with ordained priests, or the African Methodist Episcopal Church from discriminating on the basis of race in hiring and firing its congregational ministers. ...
Hosanna-Tabor is filled with incongruous stories and doctrinal inconsistencies. First, there are at least three plausible accounts of what happened in Hosanna-Tabor, each of which is in tension with the others. Second, the Court\u27s endorsement of the ministerial exemption as a necessary feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. Third, the exception described by the Court is a strange mixture of rights and structure that is likely to be carved up with exceptions and limitations. And finally, the Court goes to this trouble to protect a conception and practice of institutional religion that are quickly passing awa
Mercer Law Review Vol. 044 Issue 02-021 pg. 0543 - The Poverty of Academic Rhetoric
No full textArticl
An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment
No full textA longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir Edward Coke\u27s notion of a higher-law constitutionalism that understood natural and customary rights as limits on crown prerogatives and parliamentary lawmaking. The American colonies adopted higher-law constitutionalism in their revolutionary struggle, and carried it with them through independence and constitutional ratification. Natural and customary rights limited the exercise of legislative power in the late eighteenth century through the normative definition of law inherited from the classical natural law tradition, which maintained that an unjust law was not really a law. American judges and attorneys did not consider legislative acts that violated natural or customary rights to be real laws, regardless of their compliance with a positivist rule of recognition. Accordingly, deprivations of life, liberty, or property effected on the authority of such acts did not comply with the law of the land or the due process of law, because regardless of the process such acts afforded, the deprivations they imposed were not accomplished by a true law. The classical understanding of law and thesubstantive understanding of due process that it underwrote are evident in legal dictionaries and in judicial decisions and arguments of counsel during the years immediately before and after ratification of the Bill of Rights in 1791. On balance, these authorities show that one widely held public understanding of Fifth Amendment Due Process Clause in the late eighteenth century included judicial protection of unenumerated substantive rights against congressional encroachment. Given the contemporary dominance of originalist theories of interpretation, anoriginalist defense of substantive due process under the Fifth Amendment is important for at least three reasons. First, such a defense provides a textual footing for important unenumerated substantive rights against the federal government. Second, because the original meanings of the Fifth and Fourteenth Amendment Due Process Clauses are widely thought to be identical, the originalist defense dramatically alters the interpretive landscape surrounding Fourteenth Amendment substantive due process, placing on its opponents the burden of explaining how and why the substantive understanding of due process in 1791 was lost by 1868. Finally, an originalist defense of substantive due process demonstrates that originalism is consistent with the progressive, common law recognition of individual rights
With Religious Liberty for All: A Defense of the Affordable Care Act\u27s Contraception Coverage Mandate
No full textThe “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One\u27s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share. That the free exercise of religion is fundamental constitutional right is not in doubt. But access to contraceptives is also fundamental. Such access, moreover, is a critical component of the well-being and advancement of women, enabling them to time and space their pregnancies, thereby enhancing their own health (and that of their new-born children) and facilitating their participation in the workforce on more equal terms with men. Contraception nevertheless remains a significant expense beyond the reach of many women who lack insurance coverage or whose health insurance plans do not cover contraceptives or do so only with substantial patient cost-sharing. This is a financial obstacle to the use of contraception by working-class and lower-income women, and simple economics suggests that women of all but the highest income levels are likely to use contraceptives more often and more consistently when they can obtain them at no cost. The rhetoric of those challenging the mandate charges federal violation of the free exercise rights of religious employers, usually without mentioning the substantial federal interests in protecting the religious liberty and enlarging the access to contraceptives of employees who do not share their employer’s religious values. The contraception mandate strikes a sensible balance of these competing liberty interests by generally exempting only religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them. The contraception mandate does not violate the rights of religious employers under either the Religion Clauses of the First Amendment or the Religious Freedom Restoration Act. The mandate is a “religiously neutral, generally applicable” law that does not discriminate against religious employers, does not entangle government in disputes about theology or internal church governance, and does not “substantially” burden the free exercise of religion by nonexempt religious employers. The mandate is additionally justified as the least restrictive means of protecting compelling government interests in public health and gender equity. Finally, while all these conclusions apply fully to religious nonprofit organizations, they apply with special force to religious owners of for-profit businesses operating in commercial markets
Recommended from our members
Narrative Pluralism and Doctrinal Incoherence in \u3ci\u3eHosanna-Tabor\u3c/i\u3e
No full textThe federal laws prohibiting employment discrimination are among the most important statutes ever enacted. They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.
The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire leaders, thus avoiding (what we might hope are) hypothetical absurdities like a Baptist minister who sues because no synagogue will hire him as its rabbi. The laws do not, however, generally exempt churches from statutory sanctions against racial, national-origin, sex, or disability discrimination when they deal in the employment of ministers and other church leaders. By their terms, the federal anti-discrimination laws would prohibit the Roman Catholic Church from discriminating on the basis of sex in filling positions with ordained priests, or the African Methodist Episcopal Church from discriminating on the basis of race in hiring and firing its congregational ministers. ...
Hosanna-Tabor is filled with incongruous stories and doctrinal inconsistencies. First, there are at least three plausible accounts of what happened in Hosanna-Tabor, each of which is in tension with the others. Second, the Court\u27s endorsement of the ministerial exemption as a necessary feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. Third, the exception described by the Court is a strange mixture of rights and structure that is likely to be carved up with exceptions and limitations. And finally, the Court goes to this trouble to protect a conception and practice of institutional religion that are quickly passing awa
Atmospheric Harms in Constitutional Law
No full textPrepared for the University of Maryland Constitutional Law Workshop, this essay uses Proposition 8 to frame how nontangible or atmospheric harms are treated differently by Establishment Clause doctrine than by other areas of constitutional law. The essay concludes that the greater tendency of Establishment Clause doctrine to credit actions based on atmospheric harms suggests that despite the doctrinal normalization of much Religion Clause jurisprudence, religion remains distinct from other constitutionally protected activities
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