Monday, April 8, 2019
By Jeremiah Ho Association Professor, UMass Law School
It’s probably unsurprising to say that a severe case of status quo anxiety has influenced the acrimonious states of our recent politics. The Senate majority’s latest episode of “going nuclear” (i.e. using a simple-majority vote) to rewrite the rules for confirming presidential judicial nominees seems like a move partly motivated by an urgency to clear the backlog of Trump nominees before a period of political powershifting arrives.
Last year at this time, a study put forth by the National Academy of Sciences suggested that the dominant demographic that supported Trump in the last presidential election cycle (white, male and Christian) did not act necessarily out of a sentiment of feeling “left behind,” but rather by the narrative of fearing what may come. Here is a NY Times article from last year that succinctly summarizes the study. If the idea of fear of the future holds true, then it not only helps us understand what happened in 2016, but also, for the time being, our current state of politics—and, derivatively, of law.
I broach this idea of status quo anxiety because I’ve seen it in two Supreme Court decisions involving religion rendered in the past year. Such anxiety helps explain for me what might be the animating principle for the Court in controversial decisions that may bring up the fear of progress—or putting it in relative terms of the status quo—the fear of losing status as a result of socio-political progress.
First, in reverse chronological order, is Dunn v. Ray, a case from this past February where the Court vacated the stay of execution entered originally by the Eleventh Circuit. In Dunn v. Ray, Domineque Ray, a black Muslim, who had been placed on death row in Alabama, requested to have an imam present at his execution. The Holman Correctional Facility in Alabama, where Ray was to be executed, had regularly permitted Christian chaplains for prior executions but refused Ray’s request for an imam. Ray appealed and sought a stay of execution. The Eleventh Circuit granted the stay because it held that the prison facility likely violated the First Amendment Establishment Clause and would proceed to consider the merits of Ray’s case. However, on further appeal by the Alabama Department of Corrections to the Supreme Court, the Court in Justice Thomas’ written order, vacated the stay of execution because it determined that Ray had waited too long to seek his request for an imam. The result, as many commentators have noted, is a disparate result between different religions—imparting what Justice Elena Kagan wrote in her dissent, joined by Justices Ginsburg, Breyer and Sotomayor, was treatment that prioritizes a majority religion over a minority religion. In her words, the Court’s decision “goes against the Establishment Clause’s core principle of denominational neutrality.”
Some observers immediately noted a speciousness in the Court’s reliance on procedure to lift the execution stay. The reliance on procedure here seemed heavy-handed, especially in light of the constitutional violations that underscored this case. Dunn v. Ray is an unsatisfactory case because Ray’s religious merits were ignored—and yet, this is the same court that has recently fortified religious practices, most notably in cases such as Burwell v. Hobby Lobby or Town of Greece v. Galloway. Very shortly in this term, we will see the Court’s decision in another religious liberty case, American Legion v. American Humanist Association, involving a cross as a war memorial. So what’s the difference between Dunn v. Ray and the others? Well, the difference might just be as terse as the majority’s decision in Dunn v. Ray: we protect religion so long as that religion does not seem to displace or threaten the status quo.
For further guidance, I refer to Derrick Bell’s theory about the status quo to explain why this underlying motive might be so. As a corollary to Bell’s well-regarded interest convergency theory, he espoused that even where an effective remedy exists for a marginalized group, that remedy will be abrogated at the point that those in power fear the remedial remedy is threatening the superior societal identity of the status quo. In the context of political marginalization of African-Americans, Bell called this “racial sacrifice.” But I also view his theory’s instrumentality applicable to other marginalized groups. In Dunn v. Ray, the subordination of Ray’s religious liberties could be sacrificial in Bell’s terms as well.
The Judeo-Christian backgrounds of the majority Justices in Dunn v. Ray are uncontroverted, as well as their conservative dispositions. In addition, the Judeo-Christian identity is well within the status quo of the American mainstream society and has influenced action on headline-grabbing controversial social issues such as women’s health and sexuality all the way to more subtle conventions such as the national holiday calendar.
By contrast, there is no doubt that the Muslim faith has engendered much disregard and misunderstanding, especially since September 11th and the war on terror. Some of the negative responses have become racialized and ensconced within the rhetoric against those of Middle-Eastern descent. In addition, the politics of race—especially the relations between white and African-American groups—have not fared well in recent years. All of these combined tensions could have resonated and then fallen upon the shoulders of Ray in his request to the prison for an imam. Ray was, by all accounts, a black Muslim who had been convicted of a 1995 homicide of a Selma, Alabama girl, Tiffany Harville. His request for an imam, rather than a Christian chaplain could have triggered a discriminatory response from Alabama prison officials that was independently echoed by the Court’s majority because it would not have led to affirming the freedom to engage in Christian practice, but rather a minority religion.
Status quo bias may not be coming from the Supreme Court bench in the expressed case sentiments of the Justices. It might, however, explain the use of procedure to summarily dispose of Ray’s case, even when Ray had some constitutional remedial measures, as the Eleventh Circuit had recognized. Ray might have been substantively entitled to his religious practices, but legal procedures were strictly enforced against him to effectuate that practice. Ultimately, it results in a double-standard brought to us through plausible deniability that Justice Thomas espoused that Ray’s imam request simply could not be obliged because the timing of the request did not adhere to procedure. As Justice Kagan revealed in her dissent, it was quite possible the context of Ray’s request had certain injustices that would have made a prompt request impossible.
Herein lies the speciousness. The substantive case was strong on Ray’s side but the Court’s procedural justification to deny his request was weak. The decision to lift the stay prioritizes the Christian faith over other faiths in Ray’s case, despite our constitutional standards of religious neutrality. Could the resort to procedure be just a cover? After all, is it the old lawyer’s strategy to resort to procedure if the substance of a case’s merits is not going to produce a win. (See the late John Dingell’s famous quote: “If you let me write the procedure, and I let you write the substance, I’ll screw you every time.”). Constitutionally, Ray might have been entitled to having an imam at his execution just as much as another inmate would have been entitled to a chaplain in similar circumstances, but because the Muslim faith is being invoked here, it isn’t treated as urgently as the Christian faith might be. The Court, under the guise of procedure and plausible deniability, summarily defeats Ray’s claim. Was the Court’s majority threatened by the idea that giving parity to the Muslim faith in Ray’s instance seemed somehow threatening to the religious liberties given to Christian practices? Under Bell’s thesis, could we deem this a moment of Muslim and racial sacrifice?
Another recent Supreme Court case that shares this same mechanism is Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, a same-sex couple sought a claim of sexual orientation discrimination under the Colorado Anti-Discrimination Act (CADA) after they had attempted to order for a custom-made cake to celebrate their then out-of-state marriage but was refused by a Christian baker. By all accounts, under CADA, the couple had strong evidence of sexual orientation discrimination and the baker did not fall within any religious exemptions. The state-level determinations all found that the same-sex couple had been discriminated against under CADA. But in 2018, even after Obergefell, the Court reversed the couple’s sexual orientation discrimination claim, not on the substantive merits but through procedure—observing that the lower state proceedings had disparaged the baker’s Christian faith during its review and thus violated religious neutrality. Again, procedure was used rigidly to vitiate the strong substance of the discrimination claim. Justice Kennedy’s use of procedure here—the violation of religious neutrality, was likewise specious and thin. The concurring and dissenting Justices in Masterpiece debated the existence or non-existence of religious neutrality, which seemed to place some doubt on the firmness of Justice Kennedy’s findings.
Could Dunn v. Ray and Masterpiece Cakeshop decisions—both involving religious liberties, minority claimants with strong substantive merits, and the Court’s dismissive use of procedure—have been rendered out of a perceived threat to the status quo’s religious identity? Do we have a panic on the Court? Placed with the context of status quo anxiety and Derrick Bell’s sacrifice theory, the two cases allow us to think about the Court’s future renderings for religious freedoms. If the Court is presiding collectively with status quo anxiety in mind, then minority claimants that seemingly threaten the status quo might have their prayers for relief fall on deaf ears.