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Last week, I blogged about a Harvard Crimson report about an event at the Petrie-Flom Center on Hobby Lobby and religious liberty. The story quoted Harvard Law School Dean Martha Minow as suggesting that if religious people cannot “live with” the “values of this country,” then “they should leave.” The Crimson subsequently issued a retraction, and explained the remarks were taken out of context. After the Crimson issued the retraction, I took down my post (something I have only done a handful of times in the 5+ years I’ve been blogging).

The video of the event has now been posted, and you can see Dean Minow’s remarks. They start at 1:39:10. The relevant portion the Crimson reported on begins at 1:41:10.

At 1:41:10, her initial point is that “law is really a bad tool for dealing with these issues, particularly adversarial litigation,” because of its all-or-nothing approach. For many people of faith, “and I count myself in that category, if the choice is adhere to your faith or leave the country, they’ll leave the country, it’s just that simple. When a group of Amish families were engaged in Wisconsin v. Yoder, if the United States Supreme Court had not found a way to create an exemption for otherwise fining the parents for sending their children to the public high school, they would have left the country, we are clear about that, that is what they told their lawyers, that is what they planned. That would be sad, since this country actually had been a haven for religious freedom really since even before its founding.”

But then at 1:42:07, she continues. “On the other hand, there will be some issues where the values of this country will run into conflict with some people’s religious views, and if they can’t live with it they should leave. The problem is, if law is answering the question it may make it more all-or-nothing than it needs to be, because many times there can be accommodations that can be worked out on a much more nuanced level than win-or-lose when there are two parties, particularly when dealing with a variety and diversity of religions in America where there are third parties, fourth parties, and fifth parties affected by the resolution between two parties.”

She returns to the topic towards the end at 1:43:10. “The risk of demonizing people with whom you disagree is escalating. I think that is the more serious than any particular competing view on the resolutions of issues posed now they we deal with the fallout of Hobby Lobby. I have a plea for tolerance and listening and trying to understand, which resonates with every religious tradition with which I am familiar with. I also want to acknowledge that there is not going to be a neutral resolution. People are going to disagree. Some people may leave the country, or otherwise divest or become less involved in American politics, which would be unfortunate. We’ve seen it happen before depending on who wins or loses in the religious skirmishes.

The first remark concerning the Amish people had the nuance that she was reporting how the Yoder family would have reacted to an adverse judgment. But the second remark did not have the nuance, and read literally, suggested those people whose beliefs clashes with the “values of this country” should leave. On the whole, when read charitably, Dean Minow wasn’t saying anyone should leave, but that people may decide to leave, or withdraw from the body politic if their faith clashes with the “values of society.”

Dean Minow was kind enough to provide comments about her remarks by email, making clear that the nuance from her first remark applied to her second comment:

Thanks for being in touch. As the context of my remarks makes clear, I was speaking about the Amish in Yoder and had them, not other examples, in mind. When I said, ‘they should leave’, the phrase was in the context of the Amish community’s dilemma I had just described a minute earlier.

The general topic raises complex matters. That recognition is the basis for my general point that adversarial legal disputes generating judicial opinions may not advance the kind of workable accommodations that have been so important in this nation’s great tradition of religious inclusion and pluralism. That tradition is meaningful for anyone who values freedom and anyone who is religious, and also for anyone who values the respect and accommodation that enable diverse people to live together. It is also vital to cultivating the ethical attitudes that help instill regard for the secular law and aspiration to good behavior. A government is not likely to elicit obedience simply through fear of punishment. The secular law, in turn, may pursue rules that do not support particular religious views or practices. The tensions are complex and real, but as my comments indicate, I believe that religious freedom is important for everyone.

I appreciate that Dean Minow took the time to reply, and I feel guilty about jumping the gun, and publishing the Crimson report before the video was posted. With blogging, there is often a question of what sources am I willing to rely on. I usually try to limit my reliance to primary sources, unless I think I can trust a report. As my good friend Garrett Epps–who was a former editor of the Crimson–reminded me, you can’t always rely on student reporting. Although in fairness to the Crimson, their initial report was a reasonable interpretation of what was said–especially since the video was not post till several days later.

I admit there may have been a bit of motivated reasoning on my part, as the comments the Crimson reported on were consistent with a theme that has been germinating well before Hobby Lobby, and now in the lead-up to the same-sex marriage cases. (I develop these ideas in my article, Collective Liberty). The argument usually takes a less extreme form–not that religious people should “leave” if their beliefs conflict with the values of the nation, but they should “exit” from the state, or in Dean Minow’s words “become less involved in American politics.” This isn’t a hypothetical. For example, Catholic charities who refuse to place children for adoption with same-sex couples have closed their adoption units in Massachusetts and the District of Columbia. Religious universities have declined federal funding rather than comply with various mandates that could impose on their beliefs. This makes it impossible for any student to receive financial aid, and renders the finances of such an institution precarious. This is all a prelude to the “Bob Jones” question Justice Alito posed to the Solicitor General during oral arguments, and to which the SG basically conceded the question.

It isn’t the case that religious organizations will be literally forced to do something that goes against their conscience, but that the failure to act in accordance with the state’s dictates will result in the deprivation of certain state benefits, such as tax-exempt status. (Let’s put aside for the moment the HHS originally crafted the contraception mandate to apply to religious non-profits like the Little Sisters of the Poor). Justice Scalia’s question about whether the state could force a priest to perform a same-sex wedding was the wrong question. The freedom of speech would probably prohibit a priest from being required to officiate at any wedding. (A Couer d’Alene City Attorney initially determined that a for-profit chapel must perform a same sex wedding, but after some outrage, reversed his position for the for-profit “religious corporation” based on the state RFRA).

The more precise question should have been whether a state or city could take away a church’s property or sales tax-exempt status, or deny a priest the license to be an officiant at any marriage ceremonies, or not recognize a ceremony performed by this officiant. (Update: A New Zealand think tank has already suggested religious group should be scrutinized before receiving a tax-exempt status). Mike Dorf has a thoughtful post addressing this question head-on–much deeper than Justice Kagan’s unsatisfactory retort about Jewish rabbis not marrying non-Jews–and explaining it isn’t entirely clear that the state would have to recognize such a wedding:

The religious ceremonies themselves would undoubtedly be permitted to occur without interference from the state. At most it might be said that if the state denies legal recognition to weddings performed by clergy who refuse to perform same-sex (or interfaith) ceremonies, the state in effect penalizes practitioners of the corresponding denominations. An opposite-sex couple wishing to be married in a faith that does not recognize same-sex marriage would need to have two ceremonies—one religious and one civic—whereas members of more egalitarian sects would only need to have the religious ceremony. But it is not obvious that this subtle pressure should be sufficient to trigger the Free Exercise Clause.

I take it that Dean Minow’s point is that it would be sad for the Amish to have to leave, if the state (or the Court) is not willing to provide an accommodation for their religious beliefs. I think she would also agree that it would be sad for the state to no longer recognize weddings officiated at by an Orthodox Jewish Rabbi if the Rabbi refuses to preside at gay weddings. I think she would also agree that it is sad for Catholic charities to shut down adoption units due to state regulations concerning placements with same-sex couples. (I had a conversation with two law professors recently who were incensed that their state was trying to pass a law to prevent religious charities from having to place children with same sex couples, so I’m not sure everyone would be sad about this).

“Sad,” sure, but what to do about it? Wasn’t this Justice Frankfurter’s point in Gobitis? If the state legislature is not interested in providing accommodations–I’m waiting for states to start repealing RFRAs–and the courts offer no additional protections for free exercise, the situation will get a lot more sad.

What makes this even more troubling, is not everyone would agree on what is sad. This past semester in constitutional law, I had a couple of students who said unequivocally that religions that treat gays and lesbians differently should not be tolerated because they are intolerant. (Think about that one for a second). I suspect, and fear, that today’s generation of trigger-warned delicate snowflakes–inculcated that millennia-old faiths that haven’t evolved with the zeitgeist over the last two decades are bigoted–will perpetuate this mentality as they become tomorrow’s leaders. A recent Pew Report suggested that in the last 7 years, the percentage of Americans who describe themselves as Christians dropped by 78.4% to 70.6%. By 2050, the percentage of Americans who will claim to be secular will increase from 16% to 25%. And unlike in the past, this generation shows no signs of becoming more religious as it ages. If the government acts to eliminate a Church’s tax-exempt status and not recognize their marriage ceremonies–further stigmatizing faith itself–this perception of religion will most likely hasten.

I recently had a discussion with several Orthodox Rabbis, and I asked them what they would do if the state threatened to revoke their power to officiate at weddings if they refused to officiate at same-sex marriages. They all agreed–they would stop exercising the power of the state to officiate at any civil weddings, and would not sign marriage licenses. They would only perform the religious ceremony.  This wasn’t even a close call for them. When I asked what would happen if a city or county tried to eliminate their tax-exempt status, the conversation took on a much more dire tone, as the Temple would be severely injured by it. In states with a RFRA, such a law would impose a substantial burden. But in states without a RFRA, I don’t see how Smith would provide any protection under the Free Exercise Clause. If anything, wouldn’t the later-in-time 14th Amendment’s heightened scrutiny for discrimination against gays and lesbians–which the Court is on the cusp of constitutionalizing–trump the First Amendment’s right of free exercise? The churches wouldn’t be required to admit, or marry gays and lesbians–that would violate the freedom of association–they would only lose their tax-exempt status. This was the crux of Bob Jones, as the Court found that the eradication of racial discrimination was so compelling that it easily allowed an infringement of the university’s beliefs.

As this trend continues, what choice will be left for religious people to practice their faith? Leave–not from America, but withdraw from the American body politic itself. This separation of church from state would indeed be very, very sad.

In 2012, I listed all of the ways the Chief Justice has thanked Court-Appointed Amici (going back to 1995). Here is an update through the end of this term

Mata v. Lynch (2015) – Will Peterson

CHIEF JUSTICE ROBERTS: Thank you. Mr. Peterson, this Court appointed you to brief and argue this case as an amicus curiae in support of the judgment below. You have ably discharged that responsibility, for which we are grateful.

Here is coverage for Will’s argument at NLJ. This is also the first case before the Court with Lynch as AG.

United States v. Windsor (2013) – Vicki C. Jackson

CHIEF JUSTICE ROBERTS: Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.

MS. JACKSON: Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you.

I think this is the first time an advocate said “Thank you” back to the Chief, and the Chief replied “Thank you.”

Sebelius v. Auburn Regional Medical Center (2012) – John C. Manning

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Manning, you argued and briefed this case as an amicus curiae at the invitation of the Court, and you have ably discharged your responsibility, for which the Court is grateful.
The case is submitted.

NFIB v. Sebllius (2012) – H. Bartow Farr, III

CHIEF JUSTICE ROBERTS:  Mr. Farr, you were invited by this Court to brief and argue in these cases in support of the decision below on severability. You have ably carried out responsibility for which we are grateful.

Dorsey v. United States (2012) – Miguel A. Estrada

CHIEF JUSTICE ROBERTS: Mr. Estrada, at the invitation of the Court, you have briefed and argued this case as an amicus curiae in support of the judgment below. You’ve ably discharged that responsibility, for which the Court is grateful.
The case is submitted.

Florida v. HHS (2012)  – Robert Long

CHIEF JUSTICE ROBERTS: Thank you, Mr. Clement. And thank you, General Verrilli, Mr. Kneedler, Mr. Carvin, Mr. Katsas, and in particular, of course, Mr. Long and Mr. Farr.

Long spoke on a panel about his argument.

HHS v. Florida (Anti-Injunction) (2012)- Mr. Robert Long

CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.

And in his opinion, CJ Roberts thanked amici (among other things):

Because no party supports the Elev- enth Circuit’s holding that the individual mandate can be completely severed from the remainder of the Affordable Care Act, we appointed an amicus curiae to defend that aspect of the judgment below. And because there is a reasonable argument that the Anti-Injunction Act de- prives us of jurisdiction to hear challenges to the individ- ual mandate, but no party supports that proposition, we appointed an amicus curiae to advance it.2

2 We appointed H. Bartow Farr III to brief and argue in support of the Eleventh Circuit’s judgment with respect to severability, and Robert A. Long to brief and argue the proposition that the Anti-Injunction Act bars the current challenges to the individual mandate. 565 U. S. ___ (2011). Both amici have ably discharged their assigned responsibilities.

Tapia v. United States (2011) – Stephanos Bibas

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Bibas, you were appointed by this Court to brief and argue this case. You have ably carried out that responsibility, for which the Court is grateful.

Bond v. United States (2011) – Stephen R.  McAlliser:

Mr. McAllister, this Court appointed you to brief and argue the case in support of the judgment below, you have ably discharged that responsibility for which we are grateful.

Setser v. United States (2011) – Evan A. Young:

No Thank You offered.

The Texas Lawyer has a profile on Young.

Pepper v. United States (2010) – Adam G. Ciongoli

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Ciongoli, you have briefed and argued this case as amicus curiae in support of the judgment belowat the invitation of the court and have ably discharged your responsibility.

Kucana v. Holder (2009) – Amanda C. Leiter

CHIEF JUSTICE ROBERTS: Ms. Leiter, you briefed and argued this case in support of the judgment below, at the invitation of the Court, and have ably discharged that responsibility, for which we are grateful.

Reed Elsevier v. Muchnick (2009)- Deborah Jones Merritt:

Ms. Merritt, you were appointed by this Court as an amicus to defend the judgment below, and you have ably discharged that responsibility.

Irizarry v. United States (2008) – Peter B. Rutledge

CHIEF JUSTICE ROBERTS: Mr. Rutledge, you briefed and argued the case as amicus curiaein support of the judgment below upon appointment by this Court, and we thank you for undertaking and discharging that assignment.

Greenlaw v. United States (2008) – Jay T. Jorgensen:

Mr. Jorgensen, you have briefed and argued this case as an amicus curiae in support of thejudgment below on appointment by the Court. We thank you for undertaking and discharging that assignment.

Clay v. United States (2002) – David W. De Bruin

No love from CJ Rehnquist!

Great-West Life & Annuity v. Kundson (2001) – Richard G. Taranto:

Again, no thanks from CJ Rehnquist

Ornelas v. United States (1996) – Peter Isakoff

No thanks from the Chief!

Gutierrez De Martinez v. Lamagno (1995) – Michael E. Kellogg

No thanks from the Chief.

Thursday evening I (finally) got to see The Originalist. This post will have spoilers, so stop reading if you still wish to see it. The show begins with Justice Scalia giving a talk at a law school. Edward Gero, the actor playing Scalia, got his mannerisms down to a tee. The voice was slightly off–not quite grumpy enough–but the facial expressions and smirks were perfect. Scalia is talking about why the Constitution does not allow affirmative action. Out of nowhere, an audience member sitting in the front row stands up and calls out to Scalia. After a moment, we realize that she is part of the play. She challenges Scalia that under the original Constitution, slavery was allowed. Scalia indulges her, and wishes her good luck with her legal career. She replies that she has an interview with him. D’oh.

The interview scene is fascinating, but unrealistic. Scalia desired to hire a liberal clerk to help him dismantle the other side’s arguments. The clerk-to-be, Kat–who went to HLS and clerked for Judge Wood–plays that part well. She’s not afraid of sparring with Scalia, and calls him a monster. Scalia plays the role well.

After she is hired, the Justice and the clerk have a number of discussions concerning United States v. Windsor. Scalia asks her if she can write an objective opinion. She says yes. Much of the play is about her proving that she can be accomplish that goal.

Scalia also takes her shooting. They use an AR-10. In what was definitely a nod to Justice Kagan, the “flaming” liberal loves shooting. (Really, it is a blast!).

In one of the odder turns, Scalia says someone from the Federalist Society would “help” Kat with her Windsor opinion. Absurd. But anyway, he is a sycophant ass-kisser, who worships the ground Scalia works on. In one of the more tense moments, the sycophant leaks to Politico that the clerk is a lesbian. In a showing of grace, Scalia tells her that he doesn’t care what she does in her personal life, even though later in the play Scalia insists that none of his kids could ever be gay. It was very touching the way they portrayed the scene, because she was mortified of what he would say.

In another moving scene, the clerk’s father passes away. Scalia takes her to church, and they pray together.

In the closing scenes, Kat tries to persuade Scalia to add a sentence to his Windsor dissent, acknowledging that both sides have valid points. Scalia refuses to do so, and insists he is the Justice. But in the final scene, Scalia reads his Windsor dissent from the bench, and includes that sentence. I checked his announcement from the bench, and as best as I can tell, that line was ad-libbed.

The program acknowledged Joan Biskupic and Nina Totenberg, who no doubt helped to lend an air of legal accuracy to the production. I would highly recommend it!

Woman in Gold tells the story of Maria Altmann, who sued the Austrian Government to recover paintings that were stolen by the Nazis. This case culminated in the Supreme Court’s 2004 decision in Republic of Austria v. Altmann, finding that the Foreign Sovereign Immunities Act was not retroactive, and did not serve as a jurisdictional bar. The movie itself was okay (great story, weak acting other than Helen Mirren), but the scene in the Supreme Court was so terrible, I laughed out loud in the theater.

The entire scene lasted maybe two minutes, and it was painfully inaccurate.

First, the design of the Court wasn’t even close. There were red curtains on the side, no bar separating the lawyers from the audience, and Altmann (the client) sat second chair! Before the hearing started, she took out a box of cough drops and gave one to her lawyer, Schoenberg.

The actors they selected to play the Justices were passable, but the name tag in front of Chief Justice Rehnquist was absurd. (At least they got the gold stripes).

Also, why in the world is there a fan next to Justice Breyer!? Is he not cool enough on his own (don’t answer that).

Justices Kennedy and Thomas have a carafe of water in front of them:

And Justice O’Connor has a proper neck doily.

I could not find a video with Justices Stevens, Scalia, Souter, and Ginsburg.

Second, the petitioner got up, said “I’ll be concise”, and made an argument for about 15 seconds. That’s it. Then he sat down. He gets no questions.

Third, the United States got up. The lawyer playing Deputy Solicitor General Thomas Hungar looked like he was about 70 years old.  At least he was wearing a morning coat. He said something about how if this case goes forwards, other claims against Japan may be brought. This actually happened:

Chief Justice Rehnquist: Yes.

Mr. Hungar: The… we… there are currently cases pending against countries such as Japan and Poland, with which… which this country previously entered into agreements which both sides thought had resolved the issue entirely, and to now retroactively apply a substantive provision that this Court recognized in Ex parte Peru is a substantive, not merely jurisdictional, but a substantive legal defense, to apply that retroactively would be to change settled expectations, change the rules, and it should not be done.

Then Chief Justice Rehnquist looked at the octogenarian Altmann, and said something to the effect of, “If we rule for you, then we have to worry about claims from Japan.” Everyone in the audience started laughing. (Well, the Chief did join Justice Kennedy’s dissent, ruling against Altmann, so maybe he was thinking this.).

Fourth, Schoenberg’s argument was so, so, so terrible. Here is a rough transcript:

We’re very sensitive to the government’s concerns, Mr. Chief Justice. It is the can of worms argument . . . . We recommend opening the can. And extracting one little worm with a pair of tweezers and quickly closing it shut again . . . . This is a case of one woman, wanting back what is rightfully hers . . . . Let’s give her justice too.

Yes, this is actually the argument made. I burst out laughing. I couldn’t help it.

Perhaps the only thing that was semi-accurate was that in the movie Chief Justice Rehnquist asked a question of Schoenberg. I had no idea what the question was, something about jurisdiction that made no sense. In the movie, Schoenberg replied something to the effect of “I didn’t understand that question.” Apparently, that actually was said. Justice Souter asked some question, and Shoenberg replied:

“Well, I’m . . .  I’m not sure that I understand the question.” (Turn to 27:59 on Oyez).

There was one scene earlier in the movie where Ronald Lauder (the heir to the Estee Lauder fortune) unsuccessfully tries to get Altmann to drop her lawyer and have someone more experienced argue before the Court. (Her lawyer had never argued a case before SCOTUS before). According to “Lady in Gold,” the book that was the basis for the movie, Lauder suggested that she hire Robert Bork! According to Oyez, Bork only had one argument since the 1990s–the 2002 case of  Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. The role of Lauder was played by some actor named Ben Miles, but I think Tom Goldstein could have pulled it off much more naturally–and maybe he would have snagged the client too!

Watch the clip at your own peril. It’s painful to watch.

Ben Wittes writes that the ISIS AUMF is now dead, and POTUS has won.

We see in this story why Obama was clever to play the AUMF debate the way he did, following the Syria AUMF debacle in 2013. Obama, recall, declared that he didn’t need a new AUMF, waited months to send up a draft, and then sent up a draft that contained authorities duplicative of those he already claimed. This wasn’t principled or good government, in any sense, but the result is that Obama has successfully turned congressional calcification and paralysis to his advantage.

The reason is that because of the way he postured the matter, nothing actually hinges for Obama on congressional passage of a new AUMF; the President, after all, claims the authority to do everything he wants to do against ISIL under current authorities. In fact, as I explained the other day, congressional failure to act arguably constitutes acquiescence to his broad claim of authority under the 2001 AUMF, since few of the members of Congress who are refusing to pass a new authorization are also claiming that the president lacks legal authority to take action. Many Republicans are actually complaining that he is not doing more than he is against ISIL.

Obama, in other words, put himself in a position in which congressional action would strengthen his hands and congressional inaction—always the likeliest outcome these days—would also strengthen his hand, or at least not weaken it.

It was a smart play on the part of White House lawyers. And lawmakers, true to form, are showing its tactical wisdom.

This is a point that Justice Scalia made in his Noel Canning dissent. In any long-term struggle between the President and Congress, the President will prevail due to the collective action problems of getting Congress to agree. These collective action problems are even stronger in our age of gridlock.