My colleague Dave Jaros was the subject of an extensive interview published this morning in The Atlantic online, about the charges filed last Friday against six police officers in the Freddie Gray case. As usual, Dave's take is both accessible and nuanced -- well worth the short read. Dave also shone in an interview last Friday with the CBS Radio affiliate in Boston.
Great work, Dave, you make us proud.
Wednesday, May 6, 2015
Monday, May 4, 2015
Those long-winded, plainspoken, grumpy Justices
Here's a New York Times article by Adam Liptak describing a new linguistic study of Supreme Court opinions conducted by a law professor and a couple of computer scientists. The study concludes that SCOTUS opinions are becoming (a) longer, (b) more accessible to the public and less legalistic in their language, and (c) grumpier.
Point (a) has been made in other recent studies and seems undeniably true. Point (b) rings true to me as someone who has read a lot of SCOTUS opinions written during the past 200+ years. Point (c) probably is the hardest to measure (as the Times article notes), as it turns on the frequency in the Justices' opinions of certain "positive" and "negative" words, which may have special connotations in a legal context; nonetheless, it too is consistent with my own experiential sense of trends over the past generation or two.
Intuitively it seems likely that these three phenomena, rather than each developing independently of the others, are interrelated in some way. Here's a brief and very tentative hypothesis about how.
Legal thought over the past century or so has moved from the belief that law is autonomous (it involves a unique style of reasoning, it draws on fixed universal truths, it is best done by experts who are disconnected from political or other outside influence) to a view that law is more or less a form of politics, if a rather special form: it employs a type of practical reasoning; it draws on earthly experience and moral and political beliefs and goals; as such, it invariably relies on the personal views of lawyers and judges and thus should be done by people who, while specially trained, represent diverse perspectives and backgrounds.
As our philosophical understanding of law has evolved in this way, judges have come to behave like types of political actors, albeit rather unique types. Judges have intervened in the national economy (mostly disastrously, during the so-called Lochner era of the first few decades of the 20th century), in race relations (with mixed results, from the glorious Brown v. Board to the less clearly laudatory recent cases on affirmative action), in voting rights and election law (again with mixed results, from the beneficent "one person, one vote" decisions in the 1960s to Citizens United and recent refusals to overturn voter ID laws and partisan gerrymandering), and in many other areas of social and political life. This may be a good thing overall, it may be a bad thing, but it almost certainly was inevitable.
And as judges have intervened in areas that 100 years ago might have been the exclusive realm of politics, judges have come to be seen as political actors. So the federal judicial nomination process has become politicized, focusing not on the legal skills of the nominee but rather on how he or she is likely to vote on a host of hot-button issues. And so -- surprise, surprise -- judges themselves have begun not only to intervene in formerly "political" affairs, but also to communicate like, well, politicians. Hence the move away from technocracy and formalism in judicial opinions and toward plain language. (Judges, like politicians, want to be understood by and persuasive to the general public.) And hence the grumpiness: once we acknowledge that a case can't be decided by mechanical application of universal legal truths, we enter the realm of political and moral disagreement, and judges (like politicians, and indeed like citizens) tend to get testy when someone disputes a basic value or ideology they hold dear.
And, hence, the long-windedness. It usually takes longer to explain legal concepts to laypeople than to explain them to trained experts. And it takes even longer still when a Justice has to retort (often grumpily) to a point made (often grumpily) by a Justice on the other side.
Should we regret these trends? In my opinion, no -- not as long as there is a reasonable stopping point. The simple fact is that law does not flow from a "brooding omnipresence in the sky," to quote one of the earliest and most influential progenitors of these trends, Justice Oliver Wendell Holmes, Jr.; it is a creation solely of intentional human conduct. Once we recognize that fact, then we can't ignore the role of experience, emotion, and belief in lawmaking, including lawmaking by judges. To deny that these things play a role is to bury our heads in the sand.
But this doesn't mean we ought to succumb entirely to the view that judges are nothing more than politicians in robes. As I write in a recent book chapter, American judges make policy, but they do so from a perspective different from that of an elected legislator or political official. Judges are bound to conform the policies they make to the outlines of the laws they are applying; they can't make them up from whole cloth. They are bound to respond in good faith to the proofs and arguments of the parties before them in court. And they are bound to act impartially as between those litigants. All of these constraints set judges apart from politicians and make law different from mere politics. In acknowledging that judges make law and that they can never be completely objective in doing so, we need to hold on to the things that make judicial lawmaking different, and special.
Point (a) has been made in other recent studies and seems undeniably true. Point (b) rings true to me as someone who has read a lot of SCOTUS opinions written during the past 200+ years. Point (c) probably is the hardest to measure (as the Times article notes), as it turns on the frequency in the Justices' opinions of certain "positive" and "negative" words, which may have special connotations in a legal context; nonetheless, it too is consistent with my own experiential sense of trends over the past generation or two.
Intuitively it seems likely that these three phenomena, rather than each developing independently of the others, are interrelated in some way. Here's a brief and very tentative hypothesis about how.
Legal thought over the past century or so has moved from the belief that law is autonomous (it involves a unique style of reasoning, it draws on fixed universal truths, it is best done by experts who are disconnected from political or other outside influence) to a view that law is more or less a form of politics, if a rather special form: it employs a type of practical reasoning; it draws on earthly experience and moral and political beliefs and goals; as such, it invariably relies on the personal views of lawyers and judges and thus should be done by people who, while specially trained, represent diverse perspectives and backgrounds.
As our philosophical understanding of law has evolved in this way, judges have come to behave like types of political actors, albeit rather unique types. Judges have intervened in the national economy (mostly disastrously, during the so-called Lochner era of the first few decades of the 20th century), in race relations (with mixed results, from the glorious Brown v. Board to the less clearly laudatory recent cases on affirmative action), in voting rights and election law (again with mixed results, from the beneficent "one person, one vote" decisions in the 1960s to Citizens United and recent refusals to overturn voter ID laws and partisan gerrymandering), and in many other areas of social and political life. This may be a good thing overall, it may be a bad thing, but it almost certainly was inevitable.
And as judges have intervened in areas that 100 years ago might have been the exclusive realm of politics, judges have come to be seen as political actors. So the federal judicial nomination process has become politicized, focusing not on the legal skills of the nominee but rather on how he or she is likely to vote on a host of hot-button issues. And so -- surprise, surprise -- judges themselves have begun not only to intervene in formerly "political" affairs, but also to communicate like, well, politicians. Hence the move away from technocracy and formalism in judicial opinions and toward plain language. (Judges, like politicians, want to be understood by and persuasive to the general public.) And hence the grumpiness: once we acknowledge that a case can't be decided by mechanical application of universal legal truths, we enter the realm of political and moral disagreement, and judges (like politicians, and indeed like citizens) tend to get testy when someone disputes a basic value or ideology they hold dear.
And, hence, the long-windedness. It usually takes longer to explain legal concepts to laypeople than to explain them to trained experts. And it takes even longer still when a Justice has to retort (often grumpily) to a point made (often grumpily) by a Justice on the other side.
Should we regret these trends? In my opinion, no -- not as long as there is a reasonable stopping point. The simple fact is that law does not flow from a "brooding omnipresence in the sky," to quote one of the earliest and most influential progenitors of these trends, Justice Oliver Wendell Holmes, Jr.; it is a creation solely of intentional human conduct. Once we recognize that fact, then we can't ignore the role of experience, emotion, and belief in lawmaking, including lawmaking by judges. To deny that these things play a role is to bury our heads in the sand.
But this doesn't mean we ought to succumb entirely to the view that judges are nothing more than politicians in robes. As I write in a recent book chapter, American judges make policy, but they do so from a perspective different from that of an elected legislator or political official. Judges are bound to conform the policies they make to the outlines of the laws they are applying; they can't make them up from whole cloth. They are bound to respond in good faith to the proofs and arguments of the parties before them in court. And they are bound to act impartially as between those litigants. All of these constraints set judges apart from politicians and make law different from mere politics. In acknowledging that judges make law and that they can never be completely objective in doing so, we need to hold on to the things that make judicial lawmaking different, and special.
It's not (just) a Baltimore problem
After a few weeks that have been eventful in both the usual ways (end-of-semester rush) and some not-so-usual ones (you all know what's been going on in Baltimore), I'm back in the saddle with a few overdue posts, all of which will be mercifully short.
First, on those recent events in Baltimore. An astounding new study described in today's New York Times confirms that Baltimore City is one of the worst places in the country to grow up if you are poor. (Here is the Times's graphic summary of some major points of the study, which you can tailor to your own geographic area; here is a summary by the study's authors; and here is the text of the study.) The study examines data on five million families who moved from one county in the United States to another, concluding that the geographic location where children grow up materially effects their future earning potential. Using these data, the study builds a model of the geographic factors that seem to prevent "intergenerational mobility" (the capacity to increase income as compared to one's parents). Those factors read like a list of the usual suspects: highly concentrated poverty, high income inequality, poor schools, a low percentage of two-parent families, and high crime rates. The higher the degree of these factors in your neighborhood, the worse your chances of doing better than your parents, financially speaking.
The study's authors then rank all of the nation's 2,478 counties according to these negative factors, correlating to variables such as gender and income level. Guess what: my county (Baltimore City, which is in fact a stand-alone county) ranks dead worst among the nation's 100 most populous counties (and in the bottom 1% of all counties) in effects on future income for low-income children. This means that, measured by effects on lifetime income, there is almost no worse place in the country to grow up poor than in Baltimore.
So it's a Baltimore problem, right? Yes, in the sense that the hopelessness of entrenched poverty is particularly bad and particularly evident in Baltimore, as the recent unrest has made painfully but necessarily clear. But it's far from just a Baltimore problem. Baltimore is only the worst example of a problem that plagues most large American cities. Consider the other nine counties that placed among the 10 worst among large counties in the study, listed here from #99 to #91: Mecklenburg, NC (home to Charlotte); Hillsborough, FL (Tampa and St. Petersburg); Orange County, FL (Orlando); Cook County, IL (Chicago); Fresno County, CA; Wayne County, MI (Detroit); Milwaukee County, WI; Bronx County, NY; and Pima County, AZ (Tucson). In each of these mostly urban locales, a poor child can expect to earn between 12% and 17% less over the course of his or her lifetime than the average poor child growing up in America.
The factors that tend to entrench poverty exist in cities from coast to coast. That should concern everybody, not just Americans who live in the worst of these locations. There is the sheer self-interest of wanting to avoid the chaos in our cities that the anger and frustration of entrenched poverty can cause, as we've seen illustrated all too vividly in recent days. But bigger than that is the moral imperative: it is simply unjust to sustain a system in which the future of so many children is dictated primarily by the zip code into which they happen to have been born. America was founded in part on a rejection of what Thomas Jefferson called the "artificial aristocracy founded on wealth and birth" that had dominated Europe since the middle ages. The entrenchment of American poverty is an artificial peonage founded solely on wealth and birth -- an affront to core American ideals.
And peonage and aristocracy almost always travel together (the one in steerage, the other in first class). Growing up in Baltimore, it turns out, isn't a bad thing for everybody. The study also reveals that the children of the wealthiest 1% in the City actually do better over a lifetime than the average American top-one-percenter. While the richest get richer, the poorest grow more and more hopeless. That's not an America any of us should want our kids to grow up in.
First, on those recent events in Baltimore. An astounding new study described in today's New York Times confirms that Baltimore City is one of the worst places in the country to grow up if you are poor. (Here is the Times's graphic summary of some major points of the study, which you can tailor to your own geographic area; here is a summary by the study's authors; and here is the text of the study.) The study examines data on five million families who moved from one county in the United States to another, concluding that the geographic location where children grow up materially effects their future earning potential. Using these data, the study builds a model of the geographic factors that seem to prevent "intergenerational mobility" (the capacity to increase income as compared to one's parents). Those factors read like a list of the usual suspects: highly concentrated poverty, high income inequality, poor schools, a low percentage of two-parent families, and high crime rates. The higher the degree of these factors in your neighborhood, the worse your chances of doing better than your parents, financially speaking.
The study's authors then rank all of the nation's 2,478 counties according to these negative factors, correlating to variables such as gender and income level. Guess what: my county (Baltimore City, which is in fact a stand-alone county) ranks dead worst among the nation's 100 most populous counties (and in the bottom 1% of all counties) in effects on future income for low-income children. This means that, measured by effects on lifetime income, there is almost no worse place in the country to grow up poor than in Baltimore.
So it's a Baltimore problem, right? Yes, in the sense that the hopelessness of entrenched poverty is particularly bad and particularly evident in Baltimore, as the recent unrest has made painfully but necessarily clear. But it's far from just a Baltimore problem. Baltimore is only the worst example of a problem that plagues most large American cities. Consider the other nine counties that placed among the 10 worst among large counties in the study, listed here from #99 to #91: Mecklenburg, NC (home to Charlotte); Hillsborough, FL (Tampa and St. Petersburg); Orange County, FL (Orlando); Cook County, IL (Chicago); Fresno County, CA; Wayne County, MI (Detroit); Milwaukee County, WI; Bronx County, NY; and Pima County, AZ (Tucson). In each of these mostly urban locales, a poor child can expect to earn between 12% and 17% less over the course of his or her lifetime than the average poor child growing up in America.
The factors that tend to entrench poverty exist in cities from coast to coast. That should concern everybody, not just Americans who live in the worst of these locations. There is the sheer self-interest of wanting to avoid the chaos in our cities that the anger and frustration of entrenched poverty can cause, as we've seen illustrated all too vividly in recent days. But bigger than that is the moral imperative: it is simply unjust to sustain a system in which the future of so many children is dictated primarily by the zip code into which they happen to have been born. America was founded in part on a rejection of what Thomas Jefferson called the "artificial aristocracy founded on wealth and birth" that had dominated Europe since the middle ages. The entrenchment of American poverty is an artificial peonage founded solely on wealth and birth -- an affront to core American ideals.
And peonage and aristocracy almost always travel together (the one in steerage, the other in first class). Growing up in Baltimore, it turns out, isn't a bad thing for everybody. The study also reveals that the children of the wealthiest 1% in the City actually do better over a lifetime than the average American top-one-percenter. While the richest get richer, the poorest grow more and more hopeless. That's not an America any of us should want our kids to grow up in.
Friday, April 10, 2015
The rising cost of higher education: some perspectives
There's no question that college, graduate school, and professional school tuition has risen substantially over the last few decades, outpacing the rate of inflation. One obvious possible culprit is reduced taxpayer support for public education at the state level. In last Sunday's (04/05/15) New York Times, Paul F. Campos denies that cuts in state funding are the problem. Instead he blames swelling administrative costs, suggesting near the end of the piece that "seven-figure salaries for high-ranking university administrators" are largely at fault.
Today the Times published several letters responding to Campos's piece, including my own. In my letter, I note some legitimate reasons for rising administrative costs at colleges and universities, reasons that have nothing to do with "seven-figure salaries," which are very far from the norm. (Kurt Schmoke, current president of my school (the University of Baltimore) and surely one of the most qualified leaders in higher education today, earns around $300,000 per year.) One reason is increased regulation of higher education, such as student-privacy requirements and standards for disability accommodation (to name just a few examples); these mandates necessitate administrators and staff to implement and oversee them, jobs that didn't even exist several decades ago.
Another reason is the increasing complexity of the educational mission in today's economy. College degrees are now the norm, not the exception, in the job market, making jobs for graduates harder to come by -- and pushing schools to develop sophisticated career development programs to help their graduates get those jobs. American K-through-12 education also is not what it once was -- many students come to college unprepared for the basic analytical and communicative tasks they are asked to perform -- requiring colleges to maintain extensive academic support programs. (The recent and overdue push to enroll more students from low-income families makes these programs even more essential.) Of course, these necessary student services require administrative personnel to run them.
So the problem is not just -- indeed, not primarily -- the salaries of university administrators. Higher education is a lot more complex, and thus a lot more expensive, than it was fifty years ago. The question is who is going to pay these increased costs. I personally think taxpayers should pay the lion's share of them through increased financial support for public colleges and universities. The alternative, which has taken hold in most states by default, is for students and their families to bear the brunt of these costs through increased tuition. There are tough choices to be made here, and Campos's article obscures them by suggesting that fat-cat university administrators are to blame.
Campos's piece is misleading in another way as well: he points out that overall public spending on higher education has increased over the last few decades, but downplays the fact that it actually has decreased on a per-student basis. (Exhibit A is another letter in today's Times, from the CFO at the University of California, who points out that California's higher-education system currently is funded at the same level as in 1999, despite the influx of 83,000 more students since then.) Public universities are now providing more services to their students than they were a generation ago but receiving less taxpayer support per student. In real terms, that's a decrease in public support for higher education, no matter how you slice it. (Here's an interesting blog post breaking down some of the ways in which Campos's assertions to the contrary are misleading or poorly supported.)
Campos, who is a law professor at the University of Colorado, has been a vocal critic of the current system of legal education. He now appears to be broadening his target to higher education in general. He's surely correct that there are many problems with the system as it currently stands. He's also right to demand that arguments on all sides be "intellectually rigorous." Unfortunately his recent piece in the Times fails to live up to his own standard.
Today the Times published several letters responding to Campos's piece, including my own. In my letter, I note some legitimate reasons for rising administrative costs at colleges and universities, reasons that have nothing to do with "seven-figure salaries," which are very far from the norm. (Kurt Schmoke, current president of my school (the University of Baltimore) and surely one of the most qualified leaders in higher education today, earns around $300,000 per year.) One reason is increased regulation of higher education, such as student-privacy requirements and standards for disability accommodation (to name just a few examples); these mandates necessitate administrators and staff to implement and oversee them, jobs that didn't even exist several decades ago.
Another reason is the increasing complexity of the educational mission in today's economy. College degrees are now the norm, not the exception, in the job market, making jobs for graduates harder to come by -- and pushing schools to develop sophisticated career development programs to help their graduates get those jobs. American K-through-12 education also is not what it once was -- many students come to college unprepared for the basic analytical and communicative tasks they are asked to perform -- requiring colleges to maintain extensive academic support programs. (The recent and overdue push to enroll more students from low-income families makes these programs even more essential.) Of course, these necessary student services require administrative personnel to run them.
So the problem is not just -- indeed, not primarily -- the salaries of university administrators. Higher education is a lot more complex, and thus a lot more expensive, than it was fifty years ago. The question is who is going to pay these increased costs. I personally think taxpayers should pay the lion's share of them through increased financial support for public colleges and universities. The alternative, which has taken hold in most states by default, is for students and their families to bear the brunt of these costs through increased tuition. There are tough choices to be made here, and Campos's article obscures them by suggesting that fat-cat university administrators are to blame.
Campos's piece is misleading in another way as well: he points out that overall public spending on higher education has increased over the last few decades, but downplays the fact that it actually has decreased on a per-student basis. (Exhibit A is another letter in today's Times, from the CFO at the University of California, who points out that California's higher-education system currently is funded at the same level as in 1999, despite the influx of 83,000 more students since then.) Public universities are now providing more services to their students than they were a generation ago but receiving less taxpayer support per student. In real terms, that's a decrease in public support for higher education, no matter how you slice it. (Here's an interesting blog post breaking down some of the ways in which Campos's assertions to the contrary are misleading or poorly supported.)
Campos, who is a law professor at the University of Colorado, has been a vocal critic of the current system of legal education. He now appears to be broadening his target to higher education in general. He's surely correct that there are many problems with the system as it currently stands. He's also right to demand that arguments on all sides be "intellectually rigorous." Unfortunately his recent piece in the Times fails to live up to his own standard.
Thursday, April 2, 2015
RFRA follow-up: new post from Garrett Epps
My colleague Garrett Epps hardly needs my help to boost his Atlantic.com readership, but as a follow-up to my post yesterday, I can't resist plugging his latest comment on the Indiana/Arkansas RFRA controversy. My favorite line from a column chock full of witticisms and insights: the Arkansas RFRA bill (which governor Asa Hutchinson has said he won't sign in its current form) "makes the Indiana law look like the Universal Declaration of Human Rights."
Wednesday, April 1, 2015
Update: the fate of the Orange County Government Center
And now for something completely different. Last month I posted about seemingly irreversible plans to demolish an icon of modernist architecture, Paul Rudolph's Orange County (NY) Government Center. Yesterday came news of a lawsuit seeking to block the demolition. These cases rarely succeed, but maybe the lawsuit at least will keep the spotlight on the county and its strangely bullheaded determination to tear down what many consider a masterpiece. Where there's life (or concrete), there's hope.
Equality, "religious freedom," and the need for context
By now you're probably familiar with the controversy over the Indiana RFRA (Religious Freedom Restoration Act) law and its potential -- most likely intended -- to license businesses to discriminate against gays and lesbians. (And now those enlightened statesmen in the Arkansas legislature are getting in on the act.) Here's an excellent summary in the Times of the controversy, the history of RFRA laws, and the distinguishing characteristics of the Indiana law; here's my colleague Garrett Epps's description of how Indiana's law differs from the federal and most state versions of RFRA; and here's Lambda Legal's take on why the law seems motivated by anti-gay bias.
I have never been a fan of these RFRA statutes, and these recent abuses of them highlight a big reason why. The original federal RFRA can be understood sympathetically, as an attempt to protect religious minorities from general laws that needlessly burden their religious practices (e.g., a ban on hallucinogenic drugs that fails to exempt the use of peyote in Native American rituals). But once we start requiring exemptions from general laws for religious beliefs or practices, we open the proverbial can of worms. There's a huge and growing variety of religious beliefs and practices out there, and requiring exemptions for all of them threatens to make our laws look like Swiss cheese. (That's a worm and a cheese metaphor in the same paragraph. My apologies.) It's difficult, moreover, to discern whether any given expression of a religious belief is sincere (rather than just a dodge to get around a burdensome law), or to know whether burdens on sincere beliefs are "substantial" enough (the language of most RFRA statutes) to justify an exemption. Under RFRA laws, however, judges have to make these calls, which means government officials have the authority to decide what religious beliefs are genuine and which religious beliefs and practices are sufficiently important to render a burden "substantial." And RFRA laws inevitably beg the question of who is capable of holding a "religious belief" or engaging in a "religious practice" (can for-profit corporations do it? the Supreme Court has said yes), which is really an existential question about what "religion" is -- and thus, again, hardly the kind of issue we want courts deciding.
My biggest beef with RFRA laws, however, is their prioritization of religious belief over other important values. This priority is inherent in the very notion of a "Religious" Freedom Restoration Act (as opposed, say, to a "Moral" Freedom Restoration Act): RFRAs entitle me to an exemption from drug laws if I smoke peyote as part of my Native American religious practice (the "I" here is hypothetical), but not if I smoke peyote because of a moral judgment that moderate use of hallucinogens is an acceptable form of recreation. It's true that our Constitution itself seems to prioritize religious belief by safeguarding "the free exercise" of "religion" in the First Amendment. But this Free Exercise Clause has been interpreted by the Supreme Court -- correctly, in my view -- to protect religious beliefs and practices only from intentional targeting by the government, not from incidental burdens as the result of religion-neutral laws. (This interpretation is what prompted the enactment of RFRA laws in the first place.)
And it turns out that even the Constitution's apparently favorable treatment of religion is largely illusory. The Constitution also protects other important values, such as freedom of speech, "life, liberty, [and] property," and equality, to name just a few. And this is where the primary danger of RFRA statutes becomes apparent. Some general laws are designed to further one or more of these other constitutional values. Laws prohibiting race discrimination in employment, business, or housing, for example, advance the constitutional principle of equality, extending the formal requirement of equal protection from the realm of government action (which is directly controlled by the Constitution) to the realm of private conduct (which is not). If RFRA laws are applied to create exemptions from these antidiscrimination laws, then one constitutional value (freedom of religion) is being deployed to trump another (equality).
Of course, if constitutional values conflict, one of them has to win out; one competing value inevitably must take precedence over the other. If the choice is between religious freedom and equality, why shouldn't religious freedom win? In the abstract, I'm not sure which value is more important. (I strongly lean towards equality; others surely will disagree.) But the issue presented by Indiana's version of RFRA is not an abstract one. That law expressly protects the "religious freedom" not just of individuals or religious organizations, but also of for-profit businesses; and it expressly applies not just to actions taken by the government (such as tax assessments or criminal prosecutions), but also to private lawsuits. This means that if an Indianapolis hotel (say) refuses to rent its honeymoon suite to a newly married gay couple; or an Indianapolis Hooters refuses to hire an openly lesbian waitress; these businesses cannot be sued for violating the Indianapolis ordinance that prohibits private discrimination based on sexual orientation. They would be exempted from that ordinance thanks to the new state-wide RFRA statute.
Imagine that the owner of our hypothetical Indianapolis hotel holds a sincere religious belief that interracial marriage is against God's will. (As Garrett Epps points out, such beliefs were not that terribly uncommon not that terribly long ago.) It would be obvious to most of us in that case that the value of equality should trump the hotelier's claim of religious freedom. Renting a room to an interracial couple, after all, would not force the hotel owner to change her religious beliefs; it would not prevent her from communicating those beliefs to others or expressing those beliefs through the rituals and practices of her religion. But refusing to rent the room would cause clear material harm to the interracial couple, who would be deprived of a benefit to which others are entitled, merely because of their race. And while the hotel owner is free not to invite the couple to dine at her private home, or to worship at her church, her decision to enter the hotel business is a voluntary (and remunerative) act of participation in civil society -- and thus a voluntary choice to submit to the legal and social norms of that society in the operation of her business.
As this hypothetical shows, to cloak the Indiana RFRA law in the mantle of "religious freedom" is to obscure a lot that is important about how the law will apply in the real world. The law safeguards, not simply private acts of worship or expressions of belief, but the use of for-profit businesses to inflict real, material harm on others. It thus tolerates demonstrable acts of inequality in the name of protecting the religious sensibilities of some business owners.
Of course, the meaning of "equality," like the meaning of "religious freedom," is a matter of debate. The racial-discrimination hypothetical is powerful precisely because, when it comes to race discrimination, that debate is now over; the proponents of racism have lost. No court would exempt the racist hotelier from the scope of antidiscrimination laws; any judge would recognize the state's compelling interest in preventing race discrimination. The debate over sexual orientation, obviously, continues (although the opponents of tolerance are losing at an encouraging rate). But it is not open to proponents of RFRA laws like Indiana's to remain on the fence about sexual-orientation discrimination, as Indiana's governor Pence has tried to do. (Pence says he favors amending the law to "clarify" that it does not license discrimination against gays. But he also has no plans to push for affirmative state-wide bans on LGBT discrimination.) If RFRA treats LGBT discrimination differently from race discrimination -- if it exempts the former but not the latter -- then it takes a stand on the discrimination issue: it declares that sexual-orientation equality is less important than racial equality. On the other hand, if Indiana's RFRA treats LGBT and race discrimination the same, then it assumes the opposite position on the equality question -- and there is no reason for the state not to add sexual orientation to its list of criteria upon which businesses in that state may not discriminate.
There is an irony here. Indiana's and other recent RFRA laws seem to have been prompted by the rapid spread of same-sex marriage, and in particular by the possibility that the Supreme Court will soon hold that state laws prohibiting same-sex marriage are unconstitutional. But if the Court in fact decides this, the likely result will be to render RFRA laws irrelevant to the same-sex marriage question. If same-sex couples have a constitutional right to marry, then the state governments have a compelling interest in protecting their freedom to do so. And this compelling interest is sufficient to override claims of religious freedom under every current RFRA statute.
In other words, a SCOTUS decision recognizing the constitutional right of gay couples to marry -- ideally premised on a recognition that sexual orientation is a "suspect" basis of legal classification -- would make it clear that sexual-orientation equality, like racial equality (or for that matter religious freedom), is a central constitutional value that may not be sacrificed to the religious sensibilities of a few. Here's hoping Justice Kennedy feels the same way.
I have never been a fan of these RFRA statutes, and these recent abuses of them highlight a big reason why. The original federal RFRA can be understood sympathetically, as an attempt to protect religious minorities from general laws that needlessly burden their religious practices (e.g., a ban on hallucinogenic drugs that fails to exempt the use of peyote in Native American rituals). But once we start requiring exemptions from general laws for religious beliefs or practices, we open the proverbial can of worms. There's a huge and growing variety of religious beliefs and practices out there, and requiring exemptions for all of them threatens to make our laws look like Swiss cheese. (That's a worm and a cheese metaphor in the same paragraph. My apologies.) It's difficult, moreover, to discern whether any given expression of a religious belief is sincere (rather than just a dodge to get around a burdensome law), or to know whether burdens on sincere beliefs are "substantial" enough (the language of most RFRA statutes) to justify an exemption. Under RFRA laws, however, judges have to make these calls, which means government officials have the authority to decide what religious beliefs are genuine and which religious beliefs and practices are sufficiently important to render a burden "substantial." And RFRA laws inevitably beg the question of who is capable of holding a "religious belief" or engaging in a "religious practice" (can for-profit corporations do it? the Supreme Court has said yes), which is really an existential question about what "religion" is -- and thus, again, hardly the kind of issue we want courts deciding.
My biggest beef with RFRA laws, however, is their prioritization of religious belief over other important values. This priority is inherent in the very notion of a "Religious" Freedom Restoration Act (as opposed, say, to a "Moral" Freedom Restoration Act): RFRAs entitle me to an exemption from drug laws if I smoke peyote as part of my Native American religious practice (the "I" here is hypothetical), but not if I smoke peyote because of a moral judgment that moderate use of hallucinogens is an acceptable form of recreation. It's true that our Constitution itself seems to prioritize religious belief by safeguarding "the free exercise" of "religion" in the First Amendment. But this Free Exercise Clause has been interpreted by the Supreme Court -- correctly, in my view -- to protect religious beliefs and practices only from intentional targeting by the government, not from incidental burdens as the result of religion-neutral laws. (This interpretation is what prompted the enactment of RFRA laws in the first place.)
And it turns out that even the Constitution's apparently favorable treatment of religion is largely illusory. The Constitution also protects other important values, such as freedom of speech, "life, liberty, [and] property," and equality, to name just a few. And this is where the primary danger of RFRA statutes becomes apparent. Some general laws are designed to further one or more of these other constitutional values. Laws prohibiting race discrimination in employment, business, or housing, for example, advance the constitutional principle of equality, extending the formal requirement of equal protection from the realm of government action (which is directly controlled by the Constitution) to the realm of private conduct (which is not). If RFRA laws are applied to create exemptions from these antidiscrimination laws, then one constitutional value (freedom of religion) is being deployed to trump another (equality).
Of course, if constitutional values conflict, one of them has to win out; one competing value inevitably must take precedence over the other. If the choice is between religious freedom and equality, why shouldn't religious freedom win? In the abstract, I'm not sure which value is more important. (I strongly lean towards equality; others surely will disagree.) But the issue presented by Indiana's version of RFRA is not an abstract one. That law expressly protects the "religious freedom" not just of individuals or religious organizations, but also of for-profit businesses; and it expressly applies not just to actions taken by the government (such as tax assessments or criminal prosecutions), but also to private lawsuits. This means that if an Indianapolis hotel (say) refuses to rent its honeymoon suite to a newly married gay couple; or an Indianapolis Hooters refuses to hire an openly lesbian waitress; these businesses cannot be sued for violating the Indianapolis ordinance that prohibits private discrimination based on sexual orientation. They would be exempted from that ordinance thanks to the new state-wide RFRA statute.
Imagine that the owner of our hypothetical Indianapolis hotel holds a sincere religious belief that interracial marriage is against God's will. (As Garrett Epps points out, such beliefs were not that terribly uncommon not that terribly long ago.) It would be obvious to most of us in that case that the value of equality should trump the hotelier's claim of religious freedom. Renting a room to an interracial couple, after all, would not force the hotel owner to change her religious beliefs; it would not prevent her from communicating those beliefs to others or expressing those beliefs through the rituals and practices of her religion. But refusing to rent the room would cause clear material harm to the interracial couple, who would be deprived of a benefit to which others are entitled, merely because of their race. And while the hotel owner is free not to invite the couple to dine at her private home, or to worship at her church, her decision to enter the hotel business is a voluntary (and remunerative) act of participation in civil society -- and thus a voluntary choice to submit to the legal and social norms of that society in the operation of her business.
As this hypothetical shows, to cloak the Indiana RFRA law in the mantle of "religious freedom" is to obscure a lot that is important about how the law will apply in the real world. The law safeguards, not simply private acts of worship or expressions of belief, but the use of for-profit businesses to inflict real, material harm on others. It thus tolerates demonstrable acts of inequality in the name of protecting the religious sensibilities of some business owners.
Of course, the meaning of "equality," like the meaning of "religious freedom," is a matter of debate. The racial-discrimination hypothetical is powerful precisely because, when it comes to race discrimination, that debate is now over; the proponents of racism have lost. No court would exempt the racist hotelier from the scope of antidiscrimination laws; any judge would recognize the state's compelling interest in preventing race discrimination. The debate over sexual orientation, obviously, continues (although the opponents of tolerance are losing at an encouraging rate). But it is not open to proponents of RFRA laws like Indiana's to remain on the fence about sexual-orientation discrimination, as Indiana's governor Pence has tried to do. (Pence says he favors amending the law to "clarify" that it does not license discrimination against gays. But he also has no plans to push for affirmative state-wide bans on LGBT discrimination.) If RFRA treats LGBT discrimination differently from race discrimination -- if it exempts the former but not the latter -- then it takes a stand on the discrimination issue: it declares that sexual-orientation equality is less important than racial equality. On the other hand, if Indiana's RFRA treats LGBT and race discrimination the same, then it assumes the opposite position on the equality question -- and there is no reason for the state not to add sexual orientation to its list of criteria upon which businesses in that state may not discriminate.
There is an irony here. Indiana's and other recent RFRA laws seem to have been prompted by the rapid spread of same-sex marriage, and in particular by the possibility that the Supreme Court will soon hold that state laws prohibiting same-sex marriage are unconstitutional. But if the Court in fact decides this, the likely result will be to render RFRA laws irrelevant to the same-sex marriage question. If same-sex couples have a constitutional right to marry, then the state governments have a compelling interest in protecting their freedom to do so. And this compelling interest is sufficient to override claims of religious freedom under every current RFRA statute.
In other words, a SCOTUS decision recognizing the constitutional right of gay couples to marry -- ideally premised on a recognition that sexual orientation is a "suspect" basis of legal classification -- would make it clear that sexual-orientation equality, like racial equality (or for that matter religious freedom), is a central constitutional value that may not be sacrificed to the religious sensibilities of a few. Here's hoping Justice Kennedy feels the same way.
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