On Hostility to Religious Views (for Non-Religious Reasons)

The other day, the Second Circuit in Mid Vermont Christian School v. Saunders ruled in favor of a Christian private school in Vermont which had been suspended from state extracurricular competitions after it refuses to allow its girls basketball team to play against a team with a transgender athlete. The school averred that playing such a game would force it to affirm that transgender girls are girls; the relevant Vermont agency decided this was discriminatory and expelled the school. The court, in turn, concluded that Vermont's actions evinced hostility to the school's religious views and thereby violated the First Amendment.

There are some complex factual issues in this case. But there are aspects of the court's opinion that I think have to be wrong, in terms of how it treats the question of "hostility toward the school’s religious beliefs." To put the matter bluntly: people (and the government) are allowed to have hostility towards a school's (or anybody's) "religious beliefs", and such hostility cannot itself be a First Amendment violation. What they cannot do is have hostility to these beliefs because they're religious, or hostility specifically tied to them being held by a particular religious group. But it cannot be the case that hostility to a given belief, where that hostility has nothing to do with religion and extends to any holder of the belief (religious or not), becomes unconstitutional religious hostility just because this particular holder of the belief believes it for religious reasons.

The court recognized that a "neutral" law or policy of "general applicability" does not become unconstitutional because it happens to impinge upon (even a sincere) religious belief. But it said, following Masterpiece Cakeshop, that a neutral law can still fail if it is not applied "in a manner neutral toward and tolerant of . . . religious beliefs." Fine, as far as it goes. But the way the court identifies what it means to be "intolerant" towards religious beliefs at times verges on suggesting that anytime one defends (as a general, neutral principle) a position that is (in the particular case at hand) antagonistic to a proffered religious belief, one is displaying unconstitutional "hostility" -- and if that's true, then it is functionally impossible for there to be a "neutral" law in the first place.

Let's take some examples. Suppose someone asks for a Kosher meal at a school event to substitute for the planned ham and cheese sandwich. The chef is derisive: "I can understand ethical objections to eating meat or other foods, but I'm not going to cook up a new meal just because your fantasy Sky God says so." That's hostility to religious belief -- the same (basic) belief is viewed disdainfully because it emanates from religion.

Compare a situation where someone explains "at our college, we prohibit interracial dating." You respond and say that is racist and discriminatory. They then say, "it's our religious belief." You respond "I don't care -- it's still racist and discriminatory." At one level, you are of course expressing "hostility toward the school's religious belief." At another level, your hostility has nothing to do with it being a religious belief; an it's a hostility you are entirely entitled to hold. The First Amendment simply cannot mean that this sort of "hostility" is constitutionally problematic. If it were, then it would be impossible to defend a neutral and generally applicable rule against racial discrimination in any circumstance where someone wanted to racially discriminate for religious reasons, since the very act of explaining why the rule against racial discrimination is important would be reclassified as anti-religious antagonism.

So in the present case, the critical question ultimately should be whether the state's antagonism towards the anti-trans beliefs of Mid Vermont are due to those beliefs being religious, or whether the state is equally "intolerant" of those beliefs no matter who holds them, with the fact that Mid Vermont happened to be a religious believer being wholly incidental and irrelevant. As alluded to, there is some evidence in this case that points in the former direction (I think it's weak, but Masterpiece Cakeshop made a mountain out of a molehill of weak evidence of religious hostility that other minorities wish they could access). But my main problem with this opinion is that it strongly suggests that the First Amendment problem would be the same even if we were unambiguously in the latter camp.

Consider one of the critical excerpts, from how the Vermont agency explained why it did not find compelling Mid Vermont's complaint that playing with transgender athletes would "endorse" beliefs about gender it wished to reject:

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

The court analyzed that passage thusly:

That statement did not just question Mid Vermont’s religious sincerity. It also attacked the validity of Mid Vermont’s objection. But “[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.” That is because “courts should not inquire into the centrality of a litigant’s religious beliefs.” .... Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong."

This is, I'm sorry to say, deeply confused analysis. The sincerity/validity divide goes to whether or not Mid Vermont's claim is actually a religious one, and it's absolutely correct that the state has no business telling Mid Vermont that it's claim is a "wrong" understanding of Christianity. But that's not what the state was doing. The state isn't saying that Mid Vermont's logic is wrong as a religious proposition, it's saying it's wrong as a general proposition. In that circumstance, of course the state is entitled to "impose discipline" because it thinks the objection was wrong. Vermont has a policy, Mid Vermont thinks that policy is wrong, Vermont thinks Mid Vermont's objection doesn't hold water and so continues to apply the policy. That's completely anodyne, and it doesn't change because Mid Vermont's objection stems from its sincere religious beliefs. Under the Court's logic, any time any actor raises any sincere religious objection to any policy, they must win automatically because the act of rejecting the objection would suggest the religious objection was "wrong". Again -- I can't stress this enough -- religious objections can be wrong, so long as the reasons the adjudicating body thinks they're wrong are not themselves based on religion or religious hostility.

One last note: there may be circumstances where a policy is genuinely neutral and generally applicable, and not motivated or applied with religious hostility, but should still contain exceptions for religious objectors. I won't comment on whether this case is one of them. I'll only say that such cases are not, for the most part, religious hostility cases, and the problem in those cases is not one of a lack of neutrality. The outcome of Mid Vermont can, I think, be debated, but the logic of it I think is severely misguided (and, it must be said, I think is primarily traceable to courts giving super-protected status to anti-LGBTQ ideologies in a manner they've very consciously rejected in the racial discrimination context).

Who's Talking About Including Political Diversity on Campus?

Many people hate DEI (no news there). Many of those same people also are emphatic that universities must do more to prioritize intellectual and political diversity on campus. And in the overlapping diagram, it is taken for granted that the DEI apparatus is apathetic if not antagonistic to the project of promoting political diversity. It's not even something argued for; it is a presupposition that forms part of the foundation explaining why DEI is unjust.

And yet, in my experience, the academic site where one is most likely to see discussion about and concern over political diversity is ... in the DEI space.

We had our first faculty meeting of the year yesterday, which included the various faculty committees getting our formal charges. I'm chairing the law school's DEI committee (we're still allowed to have one, I guess). One thing last year's committee did was commission a "campus climate" survey, and the questions (on feelings of inclusion, prevalence of harassment, etc.) included ones keyed to political differences. The questions regarding how to facilitate a campus environment that's inclusive political diversity emanated primarily out of the DEI committee.

That's not because the rest of the faculty is apathetic to the issue. Rather, most issues in academia -- including important issues, including issues which predominantly occupy the public's attention when they deign to think about academia -- don't get thought of that much by most professors, most of the time, for the simple reason that we only have so much time and there is a lot to think about. So we delegate and we divide labor, and the result is that many important issues are reliant on being "picked up" by a specified office or committee within an academic space. And in my experience, the space that "picks up" the issue of intellectual diversity in general and potential feelings of alienation experience by political minorities in particular are the DEI offices and officers -- a role that is entirely overlooked given the near-universally believed dogma that DEI officers are implacably opposed to intellectual diversity in general and conservatives in particular. 

We saw a version of this in the fallout of the Kyle Duncan incident at Stanford, where DEI Dean Tirien Steinbach took the fall for how she managed student protests at a Federalist Society event. Almost entirely occluded in the hatefest Steinbach endured as a supposed ideological commissar of DEI wokeness was the fact that the Federalist Society had identify Steinbach as one of its few allies on campus; a figure who stood out precisely because she was invested in ensuring that FedSoc could participate fully and equally in campus life. It is hard to imagine a clear illustration of this paradox -- the assumption that DEI is the enemy of political diversity and inclusivity; the reality that the DEI official was one of the most active proponents of political diversity and inclusivity -- than this.

Now, to be sure, the political form of "inclusion" isn't straightforward -- and in particular, it doesn't map on especially well to how we think about "inclusion" vis-a-vis ascriptive identities like race or religion. Ascriptive identities are not typically thought of as being appropriately subjected to normative criticism. A place where significant members of the population took positions of the form "I think it is illegitimate/immoral/wrong/incorrect to be Black" would be failing to be inclusive of racial difference in an obvious way. I imagine virtually all would think the same regarding religion ("It's wrong to be Jewish"); I'd say the same thing about sexual and gender identity (though here of course many conservatives would disagree, and very much want to defend the legitimacy of those who assert "it is wrong to be gay or trans").

By contrast, ideological orientations are defined by content that by definition is properly the subject of ongoing normative contestation. To be conservative (or liberal, or Marxist, or MAGA) is to endorse a cluster of normative positions which others will inevitably judge as right or wrong, correct or incorrect, or legitimate or illegitimate. A university could not function at the most basic level if members are not allowed to make those judgments (what would it even mean to say that the law school's mission is thwarted when its members make normative appraisals of ideological positions?). Unlike "I think it is wrong to be Jewish", statements of the form "I think it is wrong to oppose gay marriage" or "I think it is wrong to abolish qualified immunity" cannot be viewed as inherently problematic in a university space -- those are exactly the sorts of statements we expect to see, and there is no intrinsic foul just because one's peers think you've taken the wrong side of an ideological controversy.

This doesn't mean there isn't any space to consider how persons who take ideologically dissident positions in a given space can or should be "included". One thing we can (and I think should) say is that healthy respect for intellectual pluralism means we should be tolerant of a wide range of positions on publicly contested issues, even those we disagree with, and generally relate to such positions via the "normal" processes of respectful dialogue, debate, and consideration. Some think we shouldn't abolish qualified immunity, others we should, but even if "abolish qualified immunity" is the consensus position on campus, we should still be willing to think about the issue critically and debate it in a manner that respects the divergent views. Cultivating that sort of respect for ideological plurality seems very healthy, and hopefully can alleviate some feelings of exclusion conservative students might face. But notice that this isn't how I think we envision what "inclusion" looks like for ascriptive identities -- I do not think our goal with respect to antisemitism should be "some people think Jews are okay, and some don't, but the important thing is that we make sure that persons with all range of views on 'are Jews okay' are able to openly debate and discuss the issue." The sorts of interventions that make sense along the axis of ideological orientation are ill-equipped to address racial or religious (or, I think, sex/gender) identity.

So the issue is not straightforward, and the people who act like it is are selling you a bill of goods. The issue of inclusivity towards political diversity on campus is a complex one and one that requires serious thought. But overwhelmingly, the people who are thinking about it in a serious and systematic way -- not as rabble-rousers, not as part of a bad-faith gotcha game trying to sabotage the university -- are found in DEI offices. And I wish they got more credit for the hard work they're putting in.

Reasonable Suspect

In 2016, I published an article titled "Unsuspecting" in the Boston University Law Review that explored how a constitutionally "suspect" classification (like race) might lose that status. In its conclusion, I argued that suspect classification was doing more harm than good for the groups it purportedly protected. It had become only a tool to strike down legislation that sought to achieve racial equality.

I termed this dynamic "partial racial politics". Far from representing a near per se rule against de jure wielding of race, the actual doctrine is that "government can legislate on race freely, except when it expressly seeks to combat ongoing racial inequality." "Suspect classification doctrine is a vestigial artifact that only comes into play when racial minorities appear to be winning the political game." The government relying on race to cut off Black communities from White neighborhoods, or to decide who to execute? Supposed "strict scrutiny" falls silent. Too many minority students going to college, or voting, or entering into political office? Then strict scrutiny and a commitment to radical colorblindness suddenly comes roaring back. We might as well 

I wrote that article, again, in 2016, and while living in California. I presented it in Louisiana, where one bit of pushback was basically to argue that the risks of giving up suspect classification for race look different in California versus Louisiana. Just how confident was I, really, that suspect classification doctrine was no longer deterring any sort of racist legislation? Who knows what sorts of White supremacist malice would be unleashed if the "democratic" branches were unshackled once more?

Today, in a typical unreasoned shadow docket opinion, the Supreme Court (by a likely 6-3 vote) cleared the Trump administration to use racial profiling as part of its immigration enforcement raids. Racial background can validly be part of the basis for forming reasonable suspicion that a person is in the United States without legal documentation. The only Justice to write substantively in defense of this atrocity was Justice Kavanaugh, who suggested that undocumented immigrants have no legally protected interest in "evading questioning" and documented immigrants and U.S. citizens suffer no material injury because "the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States." What's a little race-based "stop and show me your papers" in the land of the free?

I look at today's decision, and I can't decide whether the conclusion to my 2016 paper was correct. On the one hand, the Court since then has grown only more aggressive in declaring an implacable commitment to colorblindness in the aforementioned circumstances of too many Black and brown people going to school or voting. The juxtaposition of those commitments, chest-thumpingly backed by an ironclad commitment to "colorblindness", against the willingness to sanction "color-consciousness" when it is deployed as a tool to terrorize immigrants (or those suspected of being immigrants, or those the government simply wants to terrorize under the guise of regulating immigration), seems to be a crystalline manifestation of the "partial racial politics" dynamic I identified in my article.

And yet, my Louisiana interlocutor's critique also feels more salient than ever before. In a 2025 where the government is not even nominally constrained from race-based policymaking, what horrors lie just beneath the surface, waiting to emerge? It somehow seems to simultaneously be true that the Supreme Court is doing nothing to stop (indeed, is the handmaiden of) the tidal wave of White supremacist fury crashing over the polity, and also that if we explicitly told the federal judiciary to butt out things could only get worse -- and worse in ways so terrifying I struggle to name them.

I don't have a resolution to this dilemma. We live in impossible times, where nakedly White Supremacist Senators align with a White Supremacist presidency and a White Supremacist Supreme Court to wage war on American constitutional liberty. Against this onslaught, what doctrine could ever hope to save us?

A Question About Extradition

Hypothetical question:

Suppose a U.S. citizen kills the citizen of another country on the high seas. Suppose further that the American judicial system refuses to impose legal liability on the citizen (e.g., because they conclude his actions weren't a crime, or they find some immunity doctrine bars the prosecution). The victim's country, by contrast, does want to prosecute.

Can the United States extradite the citizen to the other nation as a way of getting around the functional immunity provided by our own courts? (Does the "high seas" part of the hypothetical matter? What if the foreign national was killed or injured on U.S. soil?).

Purely a hypothetical question, of course.

Nathaniel Updates

What's new in the world? Boooo!

What's new with my adorable baby? Yaaaay!

Here are some of the latest developments on the Nathaniel front (for the record, he's 7.5 months):

Sleeping: He remains an absolutely incredible sleeper. Down at 7 PM, always sleeps through the night. I give him a bottle at around midnight, but he dreamfeeds it. We've even mostly reached the point where we don't have to rock him to sleep -- just plop him in his crib and he'll handle himself. If I die in the next few months, know it's likely that a jealous parent assassinated me.

Rolling over: He did this several months ago and then kind of just, stopped. Well, he's started again in earnest, especially in his crib. This does have one unfortunate consequence though -- he doesn't always seem to realize he can roll back over (from stomach to back). The rare times he wakes up crying, it's usually because he got on his stomach and is mad about it.

Bouncing: We got one of those bounce slings for him to sit in while we are in the kitchen and it is his favorite thing in the world. Hugs from mom and dad? Eh, take it or leave it. Time in the bounce sling? Forever, please!

Quiet: I took Nathaniel out to visit some art galleries the other day, and the gallerist remarked that he was the quietest baby she'd ever met. Which checks out -- when we're out of the house, he is the mellowest guy you'll ever meet. He's alert, and interested in what's happening around him -- but he scarcely makes a peep (or a smile).

(Interest in) crawling: He's not crawling yet, but he's definitely interested. We're seeing more knee shimmies and butt waggles when he's on his stomach, especially if there's a toy in front of him he wants to reach. To be honest though, I'm of two minds of how much of a mover he's going to be. On the one hand, he loves to move (see "bouncing"). On the other hand, he's often happy to sit quietly without moving for long stretches (see "quiet"). So I can imagine him zooming around the room at the first opportunity, and I can also imagine him just hanging out because, like, why is over there any better than over here?

Things People Blame the Jews For, Volume LXXVI: Shutting Down the Internet

 

The above screenshot is of prominent tech journalist Taylor Lorenz screenshotting a 4chan post where some claims "[REDACTED] are going to lock down the entire internet very soon." 

Can you guess what word was redacted?

If you answered "Jews", bzzt. Sorry, but that's not quite right.

The correct answer is "kikes". It's the "kikes" who are "going to lock down the entire internet very soon."*

Lorenz, to be fair, does make sure to point out one area of disagreement with the 4channer she's promoting. She thinks that "shut down" is not going to be literally true (rather, the internet will be "censored into oblivion"). But on the whole "kikes" thing, no correction apparently is needed. (And of course, even with the whole "kikes" things, you still get people saying "but it's just anti-Zionism!")

* Fun fact: When I told my wife the answer wasn't Jews but that it was "close", her next guess was "globalists". And I was like, "oh, you're reaching for euphemisms and that's going in the wrong direction here."

Seasonal Gradations

In the same vein as my post about the color green, I had a thought today about seasons.

Today is August 28, and we're in the middle of a heatwave here in Portland. This doesn't seem especially remarkable. It's August, the dog days of summer -- of course it might get hot.

However, once September rolls around -- just a few days from now -- then it would seem worthy of remark. September is Fall. Fall is cool. A hot day in September isn't shocking, but it's not something taken for granted like a hot August day is. September is fall. Fall is cool. A hot day in September yields comments like "man, it's stayed hot late this year!"

August is summer and September is fall, and there is not a smooth gradation between them. February and March, aka winter to spring, is the same. Snow on February 28? Sure, it's February -- dead of winter. Snow on March 1? That's spring snow -- weird!

November/December (fall/winter) is a little less disjointed, but still has a clear break. Snow in December is completely normal, snow in November feels very early for snow.

The only seasonal break that, for me, has a truly smooth gradation is spring into summer over May and June. I can't think of a weather event in May that I'd think "wow, it's early for that" or one in June that I'd think "wow, it's late for that" (save something truly extreme like June snow). And that made me realize that I think of summer and spring as basically the same thing -- summer is spring, only more so.

Spring and summer are the warm seasons, and winter and fall are the cool seasons. Winter and fall further get divided into snow/no snow, but spring and summer have no such divisions. So spring can fade smoothly into summer without anything feeling weird about it -- the only such smooth gradation amongst all the seasons.