First Amendment Scholarship Update

Here is this week's collection of new First Amendment scholarship:

1) Jeffrey Shulman (Georgetown Law Center), What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, 53 Villanova L. Rev. 173 (2008). The abstract states:

Despite its grounding in a specific and peculiar set of facts, the strict scrutiny mandate of Wisconsin v. Yoder (decided in 1972) has changed the constitutional landscape of custody cases - and it has done so in a way that is unsound both as a matter of law and policy. Following Yoder, most courts require a showing of harm to the child, or a substantial threat of harm to the child, before placing any restrictions on exposure to a parent's religious beliefs and practices. This harm standard leaves children in an untenable position when parents compete for "spiritual custody," for the law can protect them only when the risk of harm is already substantial. Indeed, the bar is set so high that few courts have found circumstances that satisfy the harm standard. In this essay, I argue that a strict scrutiny standard has no place in spiritual custody cases. It is hardly consistent with the basic principle that the custody court's paramount consideration is the best interests of the child. In fact, such a standard actually leaves the child unprotected from the very injuries deemed sufficient to justify judicial intervention in cases not involving religious matters.

Religious parenting rights enjoy immunity from customary family law considerations because such rights are not subject to the rule, stated most clearly and emphatically in Employment Division, Department of Human Resources of Oregon v. Smith, that application of a neutral, generally applicable law to religiously motivated conduct is not barred by the Free Exercise Clause. Spiritual custody cases implicate fundamental rights under both the Free Exercise Clause and the Due Process Clause of the Fourteenth Amendment; that is, they present a "hybrid situation," a kind of case where, peculiarly, the whole is greater than the sum of its constitutional parts, and for which strict scrutiny is somehow warranted. (In other hybrid situations, the free exercise right is joined to a fundamental protection already subject to strict scrutiny. In religious parenting cases, the parenting right is not necessarily a fundamental one.) In Smith, the Court discussed the hybrid rights situation as an exception to general constitutional principles. But in the universe of religious parenting cases, the exception easily swallows the rule. Because such cases are hybrid by definition, strict scrutiny becomes the norm, and the result is the creation of a separate sphere of the law where the government's ability to enforce generally applicable law (in spiritual custody cases, to consider the best interests of the child) is subject to an individual's religious beliefs. In that sphere, the law grants the religiously motivated parent a special constitutional privilege greater than those awarded separately under the Free Exercise Clause or the Due Process Clause, a privilege that generally trumps any countervailing interests of the state or rights of the child.

In Part I, I examine how custody courts employ the hybrid rights doctrine, tracing how the idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a strict scrutiny standard ill-adapted to the existential intricacies of family disputes. In Part II, I argue that the Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. More specifically, I am concerned with the issue of parental alienation, the (sometimes subtle, often not) ways in which one parent may seek to turn a child against the other parent. Sensitive to the need to nurture a child's relationship with both parents, and averse to any behavior that causes alienation, custody courts commonly prohibit each parent from making disparaging remarks about the other, and they do so without subjecting such measures to the heightened scrutiny demanded by a showing of harm. Penalties for subverting this judicially mandated obligation of tolerance can be severe, including modification of custody arrangements. But toleration gives way to individual rights where disparagement is religiously motivated. The harms to the child do not change. Indeed, the kind of disparagement that bears the imprimatur of religious doctrine may be far more terrifying than a parent's personal verbal rampages. What changes is the deference courts show to the parent's claim of constitutional rights. Under the harm standard, most courts treat religious disparagement as though it were mere abstract advocacy, ignoring the coercive nature of religious beliefs (children are caught between competing moral commands) and the coercive familial context in which such speech occurs (children are caught between competing parental commands).

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.

2)Jeffrey Shulman (Georgetown Law Center), The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy, 113 Penn St. L. Rev. 381 (2008). The abstract states:

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.

3)  Francis Joseph Mootz III (William S. Boyd School of Law, UNLV), Faithful Hermeneutics, fortthcoming in Michigan State Law Review (2009). The abstract states:

This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious interpretation by comparing hermeneutical activities undertaken by faithful adherents to these two different textual traditions. In this first sense, it is to compare how these practices are the hermeneutics of the faithful. On the other hand, the phrase suggests an analysis of how interpreters in these two traditions remain faithful to the nature of their practice. In this second sense, it is to compare how hermeneutics can be faithfully accomplished. My thesis is that these two senses of "faithful hermeneutics" are connected. The fact that it is faithful adherents who engage in the interpretive practice in large part defines how they can, and should, remain faithful to the interpretive enterprise.

I anchor my argument in Hans-Georg Gadamer's critique of historicism, in which he references the practices of legal and religious hermeneutics. Gadamer's philosophical hermeneutics explains how faith is a prerequisite of understanding, even as understanding revitalizes and reshapes the faith one brings to a textual tradition. I then unfold the critical dimensions of faithful hermeneutics by comparing the work of Cardinal Joseph Ratzinger (later Pope Benedict XVI) and Gianni Vattimo on the Catholic tradition. I argue that these two thinkers display both the broad range and the non-methodological character of the critical insights of faithful hermeneutics.

I conclude by suggesting that the parallels between religious and legal hermeneutics are instructive, but that we remember that it would be a mistake to conflate these two instances of faithful hermeneutics in our secular age.

4) Sylvie Bacquet (University of Westminster), Manifestation of Belief and Religious Symbols at Schools: Setting Boundaries in English Courts. The abstract states:

Since the coming into force of the Human Rights Act 1998 on 2 October 2000, state schools as public authorities have been under an obligation to comply with the European Convention on Human Rights and Fundamental Freedoms, including the right to manifest ones' religion and beliefs as laid out in Article 9 of the convention. When devising their uniform policies, schools are therefore required to accommodate religious and cultural diversity. However, the extent to which they are required to do so has given rise to much litigation and debate. This paper considers some of the theoretical implications underpinning the debate on religious symbols and manifestation of belief at school. It looks at the dilemma between the legal obligation for schools to allow the expression of cultural and religious diversity yet maintain cohesion and protect children from factional pressures related to various belief systems. It examines the extent to which human rights law can help to resolve the issue and looks also at the way the HRA itself has emerged as a conduit for crises of religious and ethnic identity in contemporary society.

5) Reid Krell (Student, University of Alabama School of Law), The Ivory Tower Under Siege: The First Amendment's Ability to Protect Academic Freedom. The abstract states:

In Garcetti v. Ceballos, the Supreme Court held that public employees who speak within the scope of their jobs are not protected by the Pickering balancing test. The Court reserved the issue of whether academics, who may make controversial speech within the course of their academic work and suffer retaliation, are subject to the Garcetti rule. This paper outlines the current thinking of how the various academic freedom claims within the First Amendment play out, and then offers a new way to resolve such a case. The First Amendment defines the contours of the professor's claim, but it is the Contract Clause that animates the claim. Essentially, what the university is asking for is authority to breach the employment agreement because the professor was in compliance with the employment agreement. Judicial sanction of such an action eviscerates contract unconstitutionally.

JFB