Stiff Joints Don’t Bend Anymore

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Carol Nackenoff

‘there is room for play in the joints’ between what the Establishment

Clause permits and the Free Exercise Clause compels.^[1]

It is an honor to participate in this celebration of Sandy Levinson’s 40 years at the University of Texas at Austin. Sandy’s enthusiasm for interacting with smart undergraduates led him to accept my invitation to serve as an examiner for my Constitutional Law honors seminar at Swarthmore, and he has also been Swarthmore’s Constitution Day speaker.

In Wrestling with Diversity (2003), Sandy Levinson is especially concerned with the arrangements through which Americans might interact peaceably with other Americans with religious and cultural worldviews different from their own. Even in the founding era, a number of influential people thought those in the new United States were diverse enough to be worrisome—there were those German-speakers in Pennsylvania; there were Quakers, Catholics, and Jews; people living in southern states and those on the western frontier were seen as having such different values from those in the northern Atlantic states that it was hard to imagine how they might form a single union.^[2] Sandy argues there was no singular “People” in whose name the Constitution of 1787 was created. Since 1787, more elements of the population have been included in the U.S. citizenry, and the nation is comprised of a much more diverse array of people (religiously, culturally) than at the founding. Sandy searches for solutions that might achieve “some kind of unum among the pluribus of American society.”^[3] Toward this end, he finds exposure to other worldviews necessary—secular perspectives for those in insular religious communities and diverse religious perspectives for those who live in highly secular ones.

Today, this looks like an increasingly tall order, and the Court might even be impeding, rather than aiding, such goals. A focus on recent constitutional struggles illuminates some difficulties and stakes in wrestling with religious diversity and diverse views about the place of religion in the public realm. The Court has weighed in on quite a few blockbuster religion clause cases since Wrestling was published. Not only are Establishment and Free Exercise Clause cases favorites on the Roberts Court’s docket, but many cases involve their intersection.

The Parliamentarian’s Curious Definition of “Merely Incidental”

David Super

     Now that Sens. Schumer and Manchin have reached agreement on the Inflation Reduction Act (IRA), the Senate Parliamentarian’s role again comes to the fore.  She will have two crucial functions. 

     First, she will rule on which provisions on the agreed legislation meet the Congressional Budget Act’s requirements for inclusion in a “reconciliation” bill (the so-called “Byrd Rule”).  This is crucial because, with united Republican opposition, the IRA can only pass through the narrow exemption from filibusters that the Act provides to budget reconciliation bills. 

     And second, the Parliamentarian must decide which amendments to that legislation may be offered on the Senate floor.  Although the Act caps the amount of time that may be spent on floor debate, it does not limit the number of amendments put to a vote so long as those amendments comply with the Act’s rules for germaneness and its restrictions on the contents of reconciliation bills.  Senate Republicans have expressed no interest in improving the legislation, but they do seek to force Democrats to cast politically damaging votes to defeat their amendments.  And because the Democrats’ majority is so narrow, every single Democrat must vote against every single “poison pill” amendment for the legislation to survive. 

     Several of the Congressional Budget Act’s restrictions on reconciliation legislation enforce the congressional budget resolution that authorized the bill.  Because the budget resolution under which Democrats are moving this bill passed over a year ago, when hopes were much higher, the IRA will easily fall within all budgetary constraints.  Republican amendments could theoretically be ruled out of order for breaching budgetary ceilings, but Democrats likely would be only too happy to vote down “budget-buster” amendments that would shrink the $300 billion in deficit reduction the IRA contains. 

     As a result, the provisions of the Congressional Budget Act most likely to affect the IRA debate are those designed to keep non-budgetary matters from hijacking the reconciliation vehicle when they lack the support to move as regular legislation.  In particular, she will have to apply section 313(b)(1)(D), which declares that “a provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”. 

     Neither the Parliamentarian nor the Senate as a whole have articulated a clear definition of what it means for a budgetary effect to be “merely incidental” to non-budgetary components.  Obviously one could not rewrite the Endangered Species Act or the Civil Rights Act of 1964 and slip it into a reconciliation bill by adding some trivial fee somewhere.  But how should less extreme cases be decided? 

     No minimum dollar threshold can do the job:  small revenue increases or spending cuts can add up to have a significant impact on the deficit.  And surely a small fiscal effect could be merely incidental to an overhaul of the nation’s telecommunications statutes yet not merely incidental to the treatment of import duties on day-minders. 

     Several years ago, the Parliamentarian rejected Republican efforts to exclude Planned Parenthood from Medicaid on reconciliation legislation.  She acknowledged that doing so might save some money but believed that restricting abortion, rather than lowering Medicaid’s costs, was the primary motive of the provision’s authors. 

     On the other hand, she allowed Republicans to gut protections for the Arctic National Wildlife Refuge on the 2017 reconciliation act.  A strong argument could be made that aiding oil and gas companies, and weakening environmental protection generally, were far more central to the proponents’ multi-year campaign to drill in the refuge than the relatively meager federal revenues anticipated.  The Parliamentarian concluded, however, that the revenues were enough to defeat a “merely incidental” point of order. 

     Throughout much of 2021, the Parliamentarian batted down several proposals to liberalize immigration laws as part of the Build Back Better reconciliation bill under consideration at that time.  Legalizing undocumented immigrants outside of reconciliation is very difficult because the Congressional Budget Office scores many such measures as having a large cost because it believes the immigrants’ family members (many of whom are U.S. citizens) would then feel more at ease accessing human services programs. 

     This would seem a classic case of the nation deciding on its fiscal priorities, the very purpose of the reconciliation vehicle.  The Parliamentarian ruled, however, that because many people passionately support helping immigrants and are largely indifferent to the fiscal impact of doing so, those fiscal effects were “merely incidental” to the non-budgetary effects on immigrants.  I disagreed with that ruling at the time – and uncertainties about its basis contributed to Democrats’ disastrous decision to delay moving the Build Back Better reconciliation bill – but it is now established precedent. 

     Republicans seem unlikely to try to provoke votes on abortion next week, but the other two precedents could be important. 

     The deal between Sens. Schumer and Manchin contains so provisions for oil and gas leasing on federal lands.  Many environmentalists could do without expanding fossil fuel consumption, but leading groups recognize that these provisions are essential to holding the whole package together, with its transformational initiatives supporting renewable energy development.  Based on her ruling on the Arctic Refuge, the Parliamentarian ought to allow this provision. 

     Republicans surely would like to force Democrats to vote on various anti-immigrant measures.  For example, they may try to force the Administration to restrict persecution victims’ ability to claim asylum in this country, as international law requires.  The fiscal effects of these provisions are likely to be quite trivial.  Moreover, much of their fiscal impact is likely to be on programs funded with discretionary appropriations, which does not count for reconciliation purposes because those programs budgets are fixed in appropriations bills. 

     These would seem to be straightforward examples of proposed changes in law with a large real-world impact and a “merely incidental” fiscal side.  These also would fit the Parliamentarian’s rationale for rejecting immigration proposals a year ago:  their motivation is hostility to immigrants – or, more precisely, seeking to mobilize voters who are hostile to immigrants – rather than any impact on the public fisc.

     More broadly, if the Parliamentarian were to allow any anti-immigrant amendments to come to a vote after blocking all pro-immigrant legislative proposals a year ago, she would create a procedural regime with a deeply unbalanced substantive effect:  immigrants’ opponents may pursue their passions through reconciliation while immigrants’ supporters may not.  For a Parliamentarian who cares more than some judges about avoiding the appearance of favoritism, deviating from her strict exclusion of immigration law changes from reconciliation could raise serious concerns. 

     Once the current legislation has been completed, the Parliamentarian could do a great service to the Senate – and to those (including the House of Representatives, the White House, the Congressional Budget Office, and the Joint Committee on Taxation) who depend on the Senate – if she would publish a clear, systematic statement of how she interprets “merely incidental”.  Whatever the merits of a case-by-case method of statutory interpretation may be in the courts, her failure to issue opinions explaining her rulings is causing considerable confusion and wasted effort while damaging confidence in her office.

     @DavidASuper1

On Friendship, Tolerance, and Religious Liberty

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Douglas Laycock

Sandy Levinson has been my friend and colleague for more than forty years. We were hired at the University of Texas Law School more or less simultaneously in 1980. We were both in our thirties, we both came with tenure, and we were both deeply interested in constitutional law. I delayed my arrival for a year, because my bride was heavily pregnant that summer. 

Once I arrived, Sandy and I sought each other out. I probably know as much about his views on law and religion from things he has said in private, and on the Conlawprof list serve (private in the sense that I am forbidden to quote it or cite it), as from anything he has formally published. But I will not breach any confidences; Sandy has published his own account of the biographical history I draw on here, in a 1993 lecture at the University of Richmond Law School. 

Sandy is an eclectic essayist, seemingly interested in just about everything—and in problematizing everything. His essays generally raise questions and only sometimes offer even tentative answers or solutions. He accepts nothing at face value, and rarely finds any text clear. He admits to having become a constitutional crank, fearing the many defects in our eighteenth-century Constitution more than he fears a Trumpist or hard-right takeover of a new constitutional convention. 

My approach to scholarship and to lawyering is very different from his. But with respect to the law of religious liberty, Sandy and I have much in common. We are both firmly committed secularists who are broadly willing to protect people with religious beliefs that we often find wildly implausible and, sometimes, abhorrent or even dangerous. Sandy credits personal biography for his religious tolerance, and as it turns out, we share a very similar formative experience.

Wrestling with Religion in Law

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

John Olusegun Adenitire

I

In the last chapter of Wrestling with Diversity, Sandy Levinson and Rachel Levinson ask ‘why should practices rooted in religious belief be treated differently than "cultural norms," whether for good (…) or potentially even for ill (…)?’. Their conclusion can be fairly summarised as stating that religion and culture are not really distinguishable so that there is no persuasive reason for treating the former differently from the latter. 

Never mind that the law, including the US Federal Constitution, places special privileges (Free Exercise) and disadvantages (Non Establishment), over things that judges label religious rather than cultural. But, in line with Sandy’s encouragement not to idolise the US Constitution, they prod us to think beyond this brute fact which is only of interest to positivist lawyers. Accordingly, they argue that as a matter of first principle, it is wrong for state officials to treat worse parents who refuse to treat their child with effective Western medicine because they favour ineffective traditional Chinese medicine compared to parents who favour ineffective Christian Science prayer. 

My view is that the sentiment behind, and many of the arguments of the chapter, are correct. Ineffective traditional Chinese medicine and ineffective Christian Science prayer should be equally penalised if they lead to the same amount of harm for a child. Yet, as the chapter in Wrestling with Diversity attests to, in the United States the latter is treated with more magnanimity by state officials because it is considered religious. The Free Exercise Clause, Federal and State level Freedom of Restoration Acts, as well as some statutes protecting faith healing would cut the Christian Science parents some slack; but not the parents who prefer traditional Chinese medicine. Surely, this state of affairs is deeply unfair, especially if you agree with Sandy and Rachel that religion and culture are not easily distinguishable either in theory or in application. 

I agree with this view. Yet, the argument in that chapter seems to me to concede more than it is due. The issue is not that ineffective Christian Science prayer and ineffective traditional Chinese medicine should be treated equally because religion and culture are too similar. The issue for me is that the chapter concedes in the first place that there is something in the world that the law should recognise as religion, even though, as it turns out, it is difficult to differentiate from culture. That concession should not be made: the law should not recognise in the first place the category of religion for reasons of conceptual clarity and fairness. Let me explain.

LevinsonFest on Wrestling with Religious Diversity

Guest Blogger

Ashley Moran

We’re pleased to share a fascinating and timely set of essays from our recent LevinsonFest 2022 panel, exploring constitutional challenges related to religion in plural societies.

The roundtable includes essays from John Adenitire (Queen Mary, University of London) on whether the law should recognize religion as a unique category, Douglas Laycock (University of Virginia) on friendship, tolerance, and religious liberty, Carol Nackenoff (Swarthmore College) on religious liberty at the intersection of the Establishment and Free Exercise clauses, Jaclyn Neo (National University of Singapore) on whether state neutrality toward religion can hold amid increasing religious diversification, Intisar Rabb (Harvard University) on pluralistic legal interpretation amid multiple constitutional faiths, Mark Scarberry (Pepperdine University) on whether minority faiths have fostered American unity, and Nomi Stolzenberg (University of Southern California) on bridging the divide between secularists and anti-secularists.

A response from Sandy Levinson (University of Texas at Austin) addresses all of these themes in assessing the relationship between law and religion over the last forty years.

The event discussion also included remarks from Sally Barringer Gordon (University of Pennsylvania), tracing the legal battles that shaped postwar Black spiritual life, and is available on the panel webpage. We hope you enjoy the discussions!

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

The Common Good as a Universal Framework

Guest Blogger

 For the Balkinization symposium on Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022). 

Adrian Vermeule

            I thank Jack Balkin for his good offices in organizing the symposium on Common Good Constitutionalism (CGC), and also thank the participants for their thoughts. In this brief contribution, I will offer some thoughts in reply. My discussion will by no means be comprehensive, with the understanding that silence as to any of the points the participants have raised is not necessarily to be taken as signifying either agreement or disagreement. Rather I will address some points that seem to me of the greatest general interest, and on which I have currently have something to contribute. Thus I pass over in silence the excellent contributions of Conor Casey and Daniel Bell, not because I disagree with them, but simply because in the former case I have no impartial standpoint from which to assess Casey’s suggestion that there is a deep continuity to my own work over time, and in the latter case because Bell’s effort to read the classical legal tradition in light of Confucian legal theory is a subject that I will have to study more deeply before I can say anything in a serious academic register — although I have expressed some informal preliminary reactions. 

            I begin with Sandy Levinson, whose contribution helpfully engaged the ideas from the inside, as it were, rather than assessing them from an external standpoint for conformity to a laundry list of progressive positions (a chronic hazard for the progressive mind, which is dominated by the practical as opposed to the speculative reason). I do have some quibbles with Levinson’s discussion. Levinson, for example, seems to suggest that natural law theory is either just coterminous with Catholic legal theory, or at least necessarily presupposes Catholicism. But this is both historically and theologically erroneous. Historically, natural law theory originates with the pagan Greeks, finds its way by complex pathways to Rome, and is already brought to a high pitch of sophistication by the Roman lawyers of the late Republic and early Empire, largely before Christianity became dominant. When Gaius, a famous jurist of the second century A.D., says (as later reported in Digest 7.5.2.1) that it is impossible to establish a usufruct in perishables even by positive decree, because “natural reason cannot be altered [even] by the authority of the Senate,” he is not speaking from specifically Catholic premises, but rather about the intrinsic nature of the relevant legal principles. Theologically, Catholicism itself holds that the natural law is written in the hearts of all men, and is in principle accessible to the universal natural reason common to all, even the unbaptized. Yet this is inessential to the main points of Levinson’s larger discussion. 

            Despite these minor missteps, Levinson understands and helpfully explains that the book has both a general and a particular part (CGC 11); it proposes a methodological framework for approaching questions of constitutional lawmaking and interpretation, a framework within which reasonable debates may be had as to how the principles of the classical legal tradition cash out. An example is a useful discussion between Jamie McGowan and Michael Foran about how exactly judicial review of rights works on classical premises. As Foran puts it, “[the book] relies on the common good as a justificatory lens of analysis, focusing on what the overarching point and purpose of constitutionalism should be.” A corollary, which the book explains at some length (beginning at CGC 3), is that the project is definitely not to take particular laws and customs from a point in time and apply them uncritically today. Some historically existing rules and customs were justifiable and others were unjust, according to the criteria of the classical approach itself, even taking into account that fit with extant legal materials is an aspect of justification. Rather the methodological project is to translate and adapt the principles of the classical legal ontology into our world and to elicit the justificatory structure they imply. Linda McClain misses this distinction, which leaves me unable to say anything about her contribution.