Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Reclaiming the Race Analogy in Fulton v. City of Philadelphia
|
Friday, November 13, 2020
Reclaiming the Race Analogy in Fulton v. City of Philadelphia
Guest Blogger
Kyle C.
Velte The Supreme Court held oral argument last
week in Fulton v. City of Philadelphia, a case asking whether
a taxpayer-funded foster care agency may turn away same-sex couples who wish to
be foster parents because of the agency’s sincere religious objection to
certifying same-sex couples. A Philadelphia ordinance—the Fair Practices
Ordinance—and the contract that
a family foster care agency such
as CSS must sign with the city prohibit
such agencies from discriminating against these same-sex couples. But CSS is
asking the Court to find that the First Amendment’s free exercise and free
speech clauses require the city to grant it an exemption from complying. The oral argument showed that some of the
Justices may believe the case turns on the extent to which an analogy to race discrimination
is appropriate in religious exemption cases involving sexual
orientation discrimination. Justice
Barrett articulated the widespread consensus that the Court would soundly
reject a claim for a religious exemption to discriminate based on race (“I
think we would agree that there’s really not any circumstance we can think of
in which racial discrimination would be permitted as a religious exemption.”). Yet today’s exemptions seekers, as well
as some of the justices, bristle at the comparison to the Supreme Court’s 1968
decision in Newman v. Piggie Park
Enterprises, which referred
to a restaurant owner’s claim for a religious exemption to a law prohibiting
race discrimination as “patently frivolous,” even in an era in which the
Court applied a form of “heightened scrutiny” to Free Exercise claims.
Those
seeking exemptions from sexual orientation non-discrimination laws today contend
that litigants in the 1960s who opposed interracial marriage or racial
integration on religious grounds were bigoted racists, while their own claims
are based on honorable religious beliefs. After setting up this
dichotomy, today’s exemption seekers argue that the race analogy must fail.
Otherwise, they contend, they will be improperly and inaccurately branded as
bigots. Many opponents of the race analogy
rely on dicta from Obergefell—that
“[m]any who deem same-sex marriage to be wrong reach that conclusion based on
decent and honorable religious or philosophical premises, and neither they nor
their beliefs are disparaged here”—to support this normative objection to the
race analogy. During the Fulton oral
argument, Justice Alito referred to this Obergefell
passage to support his own opposition to the race analogy: “Didn’t the Court in
Obergefell say exactly that? Didn’t
the Court say that there are honorable and respectable reasons for continuing
to oppose same-sex marriage? Would the Court say the same thing about
interracial marriage?” Moreover, Counselor to the Solicitor General Mooppan suggested
that the Loving v. Virginia Court
would “never” have suggested that there were “honorable and respectable reasons”
for opposing interracial marriage, like the Obergefell
Court suggested was acceptable vis-à-vis same-sex marriage. This is incorrect as a matter of
historical fact: Significant segments of mainstream society of the 1960s
considered religious objections to racial integration decent and honorable. Many legal scholars, including most recently Linda
McClain in her book, Who’s the Bigot?
Learning from Conflicts Over Marriage and Civil Rights Law,[1]
and me in a forthcoming article,[2] have
noted that in the 1960s, opponents of the Civil Rights Act of 1964 (“CRA”) made
religiously grounded arguments similar to the arguments of today’s exemption
seekers. Importantly, these religious beliefs were sincere and mainstream.[3] This
history stands in contrast to the understanding of Justice Alito and SG
Counselor Mooppan at the Fulton oral
argument. Opponents of interracial marriage and
the CRA “insisted that God was the author of natural inequality and racial
difference.”[4]
Supporters of segregation made “appeals to natural law, divine law, and
unchanging moral principles in [their] opposition” to the CRA[5] and
argued “there were decent, sincere people on both sides.”[6] Well-known
clergy, such as Rev. Jerry Falwell,[7] and
southern ministers Walter C. Givhan, Herman E. Talmage, William Robinson, and
Eugene Cook,[8]
relied on sincere religious beliefs in opposing the CRA and interracial
marriage.[9] In
addition to members of the clergy, the religious beliefs against the mixing of
the races were “deeply held by many people.”[10]
There was “widespread public disapproval on expressly religious grounds”[11] to
interracial marriage. Former President Truman publicly voiced his religious
opposition to interracial marriage, saying that it “ran counter to the
teachings of the Bible.”[12] Leading Senators from both sides of
the aisle, including Robert Byrd and Strom Thurmond, made religious arguments
against passage of the CRA. Byrd quoted Leviticus
on the Senate floor as the basis of his opposition to the CRA.[13]
These lawmakers’ sentiments were shared by “educators, ‘housewives,
sorority sisters, and Rotarians.’”[14]
It was not until 1995 and 2008, respectively, that the Southern Baptist
Convention and Bob Jones University apologized for their roles in using
religious beliefs to uphold racism.[15]
The historical record establishes beyond dispute that “the religious argument
for segregation . . . was a quite widely held belief.”[16] Thus, “just like religious opposition
to same-sex marriage in recent years, religious opposition to interracial
marriage had a very strong foothold in society” in the years leading up to the
U.S. Supreme Court’s decision in Loving
v. Virginia.[17]
In fact, these views were so mainstream as to end up in the trial court’s
decision in Loving: “Almighty God
created the races white, black, yellow, malay and red, and he placed them on
separate continents. And, but for the interference with his arrangement there
would be no cause for such marriages. The fact that he separated the races
shows that he did not intend for the races to mix.”[18]
Even after the Court struck down Virginia’s law, only twenty percent of
Americans approved of interracial marriage.[19] Like today’s exemption seekers, the
religious objectors to the CRA and interracial marriage bristled when they were
characterized as bigots; they, too, “appealed to conscience, morality,
religious teaching, and the Bible as bases for their stance.”[20] Thus,
fairly understood, the exemption seekers of the 1960s espoused views, which,
though viewed by most people today as offensive, enjoyed a breadth of
acceptance and respect by many Americans at the time they were made.[21] Many then held religious beliefs against interracial
marriage and racial integration, just as many people today hold religious
beliefs against same-sex marriage and LGBT equality. Moreover, distinguishing religious
beliefs concerning interracial marriage and same-sex marriage based on whether
such beliefs are honorable also must fail as a legal matter because courts take
at face value sincerely held religious beliefs and do so without attaching
judgments as to whether the asserted belief is “prejudiced” or “honorable.” This
approach is correct on many levels. As a pragmatic matter, such determinations
are beyond judicial competence. As a legal matter, courts decline to look
behind a sincerely held religious belief “because they must guarantee
government neutrality with respect to religions.”[22] Because
courts must not consider the “correctness” of sincerely held asserted religious
beliefs, they must likewise reject the claim by exemption seekers that courts
can classify religious beliefs as “honorable” or “bigoted,” and then make
substantive determinations on claims for religious exemptions based on such
impermissible characterizations.[23]
Thus, even if it is factually true that CSS, the agency in Fulton, is sincere and honorable in its religious beliefs about
same-sex marriage—a fact that courts and the public alike should assume—that
fact is not relevant given the plain language of the FPO and the city’s contract with family
foster care agencies proscribing discriminatory conduct based on race or sexual
orientation—as well as religion, sex and other characteristics—without any
hierarchy or exception. While CSS resists the notion that religiously
based objections to racial integration are relevant to resolution of Fulton, the fact that in both situations
claims were based on religious beliefs is the relevant comparison, making Piggie Park and the race analogy instructive.
Analogizing as a legal matter between this history of religiously motivated
racial discrimination and today’s religiously motivated sexual orientation
discrimination does not amount to a
charge of bigotry. Both outcomes are simultaneously possible: a finding that
CSS is honorable and sincere and a finding that Piggie Park would apply
to deny CSS a religious exemption even if the Court
were to apply the sort of “heightened scrutiny” that it used before its 1990
decision in Employment Division v. Smith.
Race furnishes an analogy that should help the Court fashion the best decision
in Fulton—one that avoids getting
embroiled in judgments about which
religious beliefs are virtuous or prejudiced. Rejecting
the race analogy in Fulton would create
doctrinal incoherence by permitting a
religious exemption for one protected classification (sexual orientation) but
not another (race) notwithstanding the persuasive—if not controlling—Piggie Park precedent suggesting (or
compelling) a different result. That resulting doctrinal incoherence may
destabilize antidiscrimination law beyond sexual orientation discrimination by,
for example, creating new questions about how courts should treat claims for
religious exemptions to discriminate based on religion and sex. Indeed,
Justice Sotomayor asked the agency’s counsel whether an agency that has
a religious objection to accepting families of different faiths should get the
same treatment they are seeking and counsel did not give an answer. In sum, analogizing to race in Fulton requires no improper governmental
assessment of religious beliefs, just as courts made no such assessment in the
1960s. The race analogy, including an analogy to Piggie Park, should thus be used in Fulton to support a decision in favor of the
city of Philadelphia, even if the Court chooses to apply some form of “heightened
scrutiny.” Kyle C. Velte is Associate
Professor of Law at the University of Kansas School of Law. You can
reach her by e-mail at kyle.velte@gmail.com [1] Linda C. McClain,
Who’s the Bigot? Learning From Conflicts
Over Marriage and Civil Rights Law 105, 126 (Oxford University Press
2020). [2] Velte, Kyle, Recovering the Race Analogy in LGBT
Religious Exemption Cases (March 6, 2020). Cardozo Law Review, Forthcoming,
Available at SSRN: https://ssrn.com/abstract=3549952 or http://dx.doi.org/10.2139/ssrn.3549952. [3] See, e.g., Tisa Wenger, Discriminating
in the Name of Religion? Segregationists and Slaveholders Did It, Too,
Washington Post (Dec. 5, 2017) (“In battles over slavery and racial
segregation, religion and scripture were often cited as justification for
maintaining inequality.”). [4] McClain, Who’s the
Bigot?, supra note 1, at126. [5] Id. at 126. [6] Id. at 117. [7] Michael Kent Curtis, A Unique Religious Exemption From
Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions
For Those Who Discriminate Against Married or Marrying Gays in Context, 47 Wake Forest L. Rev. 173, 188 (2012). [8] See Shannon Gilreath & Arley Ward, Same-Sex Marriage, Religious Accommodation, and the Race Analogy,
41 Vt. L. Rev. 237, 261 (2016). [9] See id. at 246. [10] James M. Oleske, Jr., The Evolution of Accommodations: Comparing
the Unequal Treatment of Religious Objections to Interracial and Same-Sex
Marriages, 50 Harv. C.R.-C.L.
L. Rev. 99, 109 (2015) [11] Nancy J. Knauer, Religious Exemptions, Marriage Equality, and
the Establishment of Religion, 84 UMKC L. Rev.
749, 779 (2016). [12] Oleske, Jr., supra note 10, at 109, citing Truman Opposes Biracial Marriage, NYT
(Sept. 12, 1963). [13] 88
Cong. Rec. 13,207 (1964) (statement of Sen. Robert Bryd). [14] Gilreath
& Ward, supra note 8, at 262
(internal citation omitted). [15] See John Dart, Southern
Baptists Vote to Issue Apology for Past Racism, Los Angeles Times (June 21,
1995); Associated Press, South Carolina:
Apology for Racist Policies, New York Times (Nov. 21, 2008). [16] Curtis, supra note 7, at, 190 (citing Jane Dailey, Sex, Segregation, and
the Sacred after Brown, 91 J. Am. Hist. 119, 121 (2004)). [17] Id. [18] 388 U.S. 1, 3 (1967). [19] Knauer, supra note 11, at 778. [20] Linda C. McClain, The Civil Rights Act of 1964 and
“Legislating Morality”: On Conscience, Prejudice, and Whether “Statements” Can
Change “Folkways”, 95 B.U. L. Rev.
891, 894-95 (2015); McClain, Who’s the
Bigot, supra note 1, at
8 (“[C]lergy and politicians defending segregation vehemently rejected the
label of ‘bigot’ and themselves appealed to religion and conscience.”). [21] See McClain, Who’s the Bigot,
supra note 1, at 126 (noting that
“religious beliefs about segregation were not ‘fringe’ in the mid-1960s and
were sincerely and widely held”). [22] Nelson Tebbe, Reply: Conscience and Equality, 31 J. Civ. Rts. & Econ. Dev. 1, 33 (2018). [23] See generally Carlos A. Ball Against
LGBT Exceptionalism in Religious Exemptions from Antidiscrimination Obligations,
31 J. Civ. Rts. & Econ. Dev.
233, 237-38 (2018).
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |