Tuesday, February 21, 2006

Partial Restoration

The Supreme Court has just released a unanimous decision in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, a religious freedom case under the Religious Freedom Restoration Act (RFLA). I blogged about the case previously, but the analysis I gave in that post was based off a really bad reading of City of Boerne v. Flores on my part, and is thus rather worthless. In any event, the Court ruled that the under the RFRA, the UDV Church could not be prosecuted under federal drug laws for the use of a controlled substance in their sacramental rites.

My TMV co-blogger Andrew Quinn calls the decision "a sloppy way of adjudicating", and thinks the Court needed to make a more "definitive call." Since I think the Court takes too much undeserved flak on it's decisions generally, and on it's religion cases specifically, I'm going to explain why this case was perfectly sensible and adjudicated in precisely the right way.

It's unclear from the post if Andrew has read the decision itself, or just a radio blurb and the brief CNN summary (word to the wise: never undertake to criticize a legal ruling based only on what you hear in the mainstream media. I guarantee you it's been dumbed down to the point where the important legal distinctions have been obliterated), but I think that it might be useful to give a bit of background on the legal context this case operates in. I think that knowing the history would explain why the Court did everything it needed to do, and in fact has answered most of Andrew's objections already.

In the beginning, there was Sherbert v. Verner. Sherbert was a free exercise case, and it basically held that laws which impinge on the free exercise of one's religion have to survive "strict scrutiny." This is the same test that's used in a variety of other fundamental rights contexts, and in a nutshell it says that the law is only valid if it is narrowly tailored to serve a compelling state interest. So, to use Andrew's example, preventing a religious group from engaging in human sacrifice would clearly pass strict scrutiny, because there is a compelling state interest in not letting people kill each other, and there's no real way to meet that interest other than banning it outright. But, for example, if a state wanted to ban religious solicitation because it bothered local homeowners, this probably would fail strict scrutiny, either because "preventing annoyance" is not a compelling state interest, or because an outright ban isn't the narrowest way to achieve that objective (see Cantwell v. Connecticut).

To me and many other folks, this was a very intelligent and common-sense test. However, in Employment Division of Oregon v. Smith, the Court effectively (if not explicitly) abandoned the Sherbert doctrine, and held that any generally applicable law automatically was not a Free Exercise Clause violation. That is, unless the law explicitly discriminated against a particular religious group, it could not be challenged under the Free Exercise Clause--the government did not have to show a "compelling state interest" or that the law was "narrowly tailored" or anything of the sort. Smith, as it happens, also dealt with sacramental drug use, in this case Native American use of Peyote.

Smith was a tremendously unpopular decision, and Congress quickly passed the Religious Freedom Restoration Act. The goal of this act was simple: re-establish the Sherbert test for determining the validity of a general legislative prohibition as applied to a particular act. So, with Peyote, Congress quickly enacted an exception to it's general drug laws saying they don't apply to Peyote. But even had their been no such exemption, now the Native Americans could argue that the prohibition of their Peyote use was not a "compelling state interest" or that the blanket prohibition was not "narrowly tailored" to serve that end. That is, if the compelling state interest behind a blanket prohibition of Peyote is that its unhealthy, the Native Americans might be able to muster evidence that shows that their carefully supervised and monitored religious use has few to none of the health risks associated with recreational use.

Bringing us back to the case at hand, the Court's decision was a relatively straight-forward application of the RFRA. The question is whether or not the government had a compelling interest in prohibiting this group from using a drug essential to their religious practice. The Court concluded that they didn't, for a variety of good reasons they lay out in the opinion itself. This is not, as Andrew describes it, a "hazy grey area", but the application of a very specific federal statute with years of doctrinal history behind it. And the fact that the use of this drug is generally illegal is not "all we need to know", because federal law creates an exception to general laws when it burdens religious practice (subject, again, to the strict scrutiny test). "Compelling state interest" may be contested in certain cases (that's why we have litigation), but the Court here did exactly what it should: it took the pertinent rule (the Sherbert "strict scrutiny" doctrine), and applied it to the facts of the case at hand. That's not "call 'em like we see 'em." That's how one decides cases. The compelling state interest standard clearly answers Andrew's human sacrifice objection, and for situations that are perhaps a closer call, those cases should be decided when they're litigated, not pre-emptively without factual briefings and oral arguments.


Andrew Quinn said...

As I commented on TMV...

All you really do in this article is give the slippery slope a name - you don't provide any solid definition for "compelling interest of the state" ... and no, pulling two decisions out of a hat does not a clear precedent make.

David Schraub said...

As responded to on TMV...

They're not "out of a hat"--at the point where the Religious Freedom Restoration Act says in the text of the act "we're restoring the Sherbert 'compelling state interest test'" because they dislike Smith, then I think in a case where the Court has to apply the RFRA, it's not dart-throwing on my part to explain what Sherbert said and the history behind Sherbert and Smith. That's statutory construction 101.

I'm confused as to what you actually want here. Since the RFRA specifically uses the words "compelling interest test" in its text, it's kind of unfair to criticize the Court for applying that standard. Court's have to apply the statute in front of them (be it the constitution or a federal law)--they don't just get to make stuff up. That's what we would call judicial activism. So saying the CIT is bad might indict Congress for writing it into the RFRA, or the Sherbert Court for creating the test in the first place, but not the UVA Court for applying the text of the statute in front of them.

Is the standard too vague? I don't think so, for two reasons. First, all guideline standards are necessarily vague--that's how they can applied as a general rule rather than specifically to one case. If Andrew can give a more specific rule that also can cross-apply to a variety of RFRA claims, I'd love to hear it, but I'm really skeptical that's even possible and think it puts a wildly unfair burden on the Court. This also takes out the argument that I need to give a "solid definition" of CIS. I think that's premature--I think the government should say in each case "here's our interest, and here's why it's compelling." Then the Court looks at that analysis and says "yeah, that's true" or "no, you're idiotic." That's case-by-case--but the Supreme Court does, in fact, judge each case separately, so I don't really think that's a problem. Moreover, that there is some subjectivity in CIS doesn't make it completely nihlistic. "Don't kill" people is pretty obviously a CIS, "don't walk on the lawn" pretty clearly isn't. Is preventing harassment? Perhaps a closer call--but again, that's why we have litigation. There will be tough cases under any standard--that's hardly a reason to reject the principle of general rules.

But also, the "compelling interest test" is SO prevelant in law that its contours are pretty clearly defined by precedent. It's not just the cases I cite (Sherbert and Cantwell)--I could literally fill a page just citing cases where "strict scrutiny" was applied. A Lexis keyword search of "Strict Scrutiny" got 56 Supreme Court cases in the past 10 years alone, "compelling interest" got 55. With all that text in front of us, I think the term has gotten enough common law interpretation to prevent it from being infinitely mallable. That actually makes the CIT test qualitatively better than any test Andrew can think of, because all the precedent behind it means that it can interpreted in congruence with our body of law as a whole, rather than be this free-floating "gap" (as Andrew might put it) in an otherwise very coherent fundamental rights doctrine we've developed.

And finally, the "slippery slope" argument is a logical fallacy--pretty much for the reasons I outlined in the post (though I didn't directly make the argument). Slippery Slope arguments say that "if we do X, we'll have to do Y, and even though X might not be so bad, Y is really bad, so we can't do X." The problem is that if Y is that bad, we should be able to think of some reason to treat if differently from X--which is exactly what the compelling interest test let's us do. If they ARE indeed exactly the same, then I'd be very skeptical that Y is actually that much worse than X. Human sacrifice, for example, IS different in important ways from drug use, and it's perfectly sensible to treat them differently.

Anonymous said...

To be sure, Establishment and Free Exercise cases are tough. (And fun!)

The Court has previously sought to have government avoid “undue entanglements” with religion. While Quinn quotes a journalist to say that the decision “moved decisively to keep the government out of a church’s religious practice,” in fact it moved to insert the Court into those practices. Rather than saying that government has not need to scrutinize religious practices because it applies its laws uniformly regardless, the RFRA says that government must stick its nose into the details of each person’s religious practices. Now government is compelled to discriminate. People engaged in identical behavior should receive different treatment based solely on each individual’s religious views. Looks like Establishment Clause Violation in a Box to me; just add plaintiff and stir.

Admittedly, the Establishment Clause issue wasn’t squarely raised in this case. Here the Ashcroft gang conceded the sincerity of the religious practice in question. But how long will it take for a cop to bust a group of atheist hippies on pot, and for the hippies to argue that passing a bong is part of a decades-old tradition in their world view, deserving protection under the RFRA? Or a flasher to argue that he feels compelled to live life unadorned, just as his Earth Mother made him? What will happen when the police come across a blog by one of the members of the UDV Church saying that she doesn’t actually believe in the church’s teachings, but merely participates cuz mom and dad make her. Can the cops now prosecute that member individually, cuz her faith isn’t “sincere”? We’re gonna have undue entanglements by the bucketful.

Yeah, I know, the feds have been in the faith-judging business for a while now. The IRS and tax courts opine about whether someone’s practices qualify for tax-exempt status. Selective Service gets to say whether a draftee’s aversion to violence is sincere. Sherbert v. Verner says government may consider someone religious views for purposes of awarding unemployment compensation. And Cutter v. Wilkinson says that a statute requiring prisons to make special accommodations for prisoners’ religious practices doesn’t violate the Establishment Clause on its face. Of course. None of these practices violate the Clause on their face. But the opportunity for discrimination is so great, and the standard to be applied is so amorphous, that these policies simply invite dissension.

I hope it all works out ok. I actually like the idea of government accommodating maximum freedom of conscience. But I can’t help feeling queezy about making government protections depend upon government scrutiny of a person’s sincerity. I will not be surprised if a future court concludes that, while these practices are facially neutral, government cannot help but apply them in a biased manner.

Freedom through objectivity! Indifference for all!