Guest Blogger: Religious Act Upheld, but with Radical Thomas Concurrence
by Lauren K. Saunders, Directing Attorney, Herbert Semmel Federal Rights Project
In Cutter v. Wilkinson, No. 03-9877, ---S.Ct.---, 2005 WL 1262549 (May 31,2005), the Supreme Court unanimously rejected a facial Establishment Clause challenge to section 3 of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a)(1)-(2), which applies to individuals in institutions. Justice Thomas joined the opinion of the Court, but wrote separately to express his view that the Establishment Clause does not apply to states and that RLUIPA likely exceeds Congress's power under the Spending and Commerce Clauses, positions with quite radical implications.
RLUIPA prohibits governments from imposing a substantial burden on religion unless the burden furthers a compelling governmental interest by the least restrictive means. It applies largely in prisons, but also in other types of government run or funded institutions like nursing homes or other facilities "for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped." Justice Ginsburg's decision for the unanimous Court noted the enormous control over institutionalized persons, and found that RLUIPA is consistent with the Establishment Clause because it "alleviates exceptional government-created burdens on private religious exercise." She also noted that, notwithstanding the strict scrutiny standard, Congress expected courts to accord due deference to the security and safety needs of jail administrators.
Justice Thomas agreed that RLUIPA was constitutional "under our modern Establishment Clause case law," but reiterated his belief that the Establishment Clause is not incorporated into the Fourteenth Amendment and "'is best understood as a federalism provision' that 'protects state establishments from federal interference.'" That is, states can establish religion and Congress cannot preclude them from doing so.
Thomas also commented that RLIUPA "may well exceed Congress' authority under either the Spending Clause or the Commerce Clause." He cited his concurrence in last year's decision in Sabri v. United States, 541 U.S. 600 (2004), in which insisted that Spending Clause legislation must be reviewed under a higher standard than mere rationality to ensure that there is an obvious, direct condition between spending conditions and the spending itself. Such an approach could doom not only RLIUPA but also other measures that Congress has adopted to prohibit recipients of federal spending from discriminating against the elderly, disabled and other groups, as well as possibly rights under the Nursing Home Reform Act.
Thomas also quoted from his concurrence in United States v. Lopez, 514 U.S. 549, 587 (1995), where he indicated his view that the power to regulate commerce extends only to trade, not manufacturing or other commercial ventures. Again, that position has repercussions far beyond protections for religious practice. His approach would likely doom the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as wells as minimum wage and maximum hour laws and labor and environmental laws.
Indeed, Thomas's restrictive views of Congress's Commerce Clause and Spending Clause authority would leave Congress with virtually no ability to enact legislation to protect individuals. Because of restrictive interpretations of the Fourteenth Amendment, both in the 19th Century and under the Rehnquist Court, it is only because of expansive views of the Commerce Clause and Spending Clause that Congress has any ability to pass legislation protecting individual rights.
Written By:Wince and Nod On May 31, 2005 7:25 PM Written By:BronxPundit On June 1, 2005 12:59 PM
"That is, states can establish religion and Congress cannot preclude them from doing so."
The Establishment Clause prohibits the U.S.Congress from "establishing" a religion, not the states.
I'm not sure whether it's correct to write that Thomas's "approach would likely doom the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as wells as minimum wage and maximum hour laws and labor and environmental laws." It seems unlikely that the Supreme Court would even make the attempt go down that road. Hey, you never know. Interesting, however.
BronxPundit,
The 14th Amendment to the Constitution "incorporates" much of the Bill of Rights onto the states. Thus while the text of the First Amendment only mentions Congress, the scope of that Amendment is expanded by later developments.
Jackson,
The 14th Amendment's privileges and immunities clause does indeed prevent the abridgement by a given state of the substantive and procedural rights of US citizens. But I think that what Justice Thomas is arguing is that the 1st Amendment does not offer a substantive right, it simply restricts the action of the Federal Government.
Agree with Thomas' view or not, the 1st Amendment is unquestionably unique because it specificially directs and speaks to Congress - by contrast, no other provision of the Bill of Rights mentions Congress. The other nine describe procedural and substantive rights; for example, the second amendment does not say "...the right of the people to keep and bear arms will not be infringed by Congress", it says "...the right of the people to keep and bear arms will not be infringed.". So Thomas' thought process here isn't entirely outlandish.
Time to consult the annals of Congress!
Simon,
I'm aware of Thomas' reasoning, but your response to my original comment seems to assume the validity of that reasoning, and assumes the validity of originalism as a methodology to boot.
The Establishment Clause has been construed by every modern era Justice except Thomas as providing an individual right. If nothing else, because Thomas is so far outside of the mainstream, the burden should be on him and his defenders to demonstrate why we should overturn the entirety of Establishment Clause law.
Simon,
I'm aware of Thomas' reasoning, but your response to my original comment seems to assume the validity of that reasoning, and assumes the validity of originalism as a methodology to boot.
The Establishment Clause has been construed by every modern era Justice except Thomas as providing an individual right. If nothing else, because Thomas is so far outside of the mainstream, the burden should be on him and his defenders to demonstrate why we should overturn the entirety of Establishment Clause law.
Jackson,
I do certainly accept, as given, the validity of Thomas' approach and reasoning, even if I don't necessarily accept his conclusions. I'm not aware of any valid approach other than laboring to "construe [it] according to the sense and the terms and the intentions of the parties", as Joseph Story put it.
If one does not, as you clearly do not, accept original meaning as the criteria for interpreting the constitution (or any other contract, for that matter), what do you propose as an alternate set of criteria?
Simon,
"Intent," at least as Justice Story uses it, was a legal term of art at the time of the founders, and refers to the purpose of the statute as evidenced by the plain words of a law and its preamble. The subjective intentions of the law's author is irrelevant to determining its "intent" for interpretive purposes.
Under this standard, the best reading of the Establishment Clause is the one provided by Justice Black in Engle v. Vitale:
When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate.
Since the preamble to the Constitution expressly establishes a purpose of "insuring domestic Tranquility," Justice Black's reading of the Establishment Clause is entirely consistent with the "intent" of Clause, at least as Justice Story uses the term "intent."
I'd recommend reading H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985). Professor Powell's article is pretty exhaustive, and has been cited in every serious scholarly discussion of originalism since its publication.
Jackson,
The way I've approached originalism has more been to ascribe to the text the meaning that it was originally understood to have when it was ratified (see, e.g., description here), not necessarily the intent of the framers. It seems to me that the Framers had many intents; thus, granting excessive weight to, for example, Hamilton's contributions in the Federalist, seems to ignore that Hamilton's preferred design for th nation was wildly at odds with Madison's (see, e.g. Debates in the Federal Convention, June 18). So I generally accept that original intent is an interesting but flawed theory.
Scalia's version, original understanding (or original meaning), is much more attractive to me, though. It satisfies my view that the text must have some fixed meaning, otherwise the amendment process will be relentlessly short-circuited; I see no reason to believe that this is what the Framers intended. Incidentally, I hadn't noticed the inconsistency in terminology used by Story, but I'm pleased that you've actually resolved it in a way that would favor my own view. ;)
I have seen Powell's piece cited before, but I've not read it - can you suggest where I can obtain this other than Lexis; is it available through a non-charge site on the web?
~Simon
I wouldn't get too excited yet. If you manage to dig up a copy of Powell's article (which is, unfortunately, only available in print and Lexis/Westlaw) you will be treated to the story of President Madison signing a bill authorizing the Second Bank of the United States, even though he had passionately argued that such a bank was unconstitutional during his tenure in Congress. Madison believed that, since the First Bank had existed for twenty years, and because neither Court nor Congress had said such a bank could not exist, that the meaning of the Constitution had effectively changed over the course of those twenty years.
Of course I recognize that Madison can still be condemned for this action by a Scalian originalist. If it is truly the original understanding which matters, than Madison's subjective interpretation of the Constitution is irrelevant to the ultimate question of the document's meaning. Nevertheless, it's also useful to note that Scalian originalism is a relatively new kid on the block. It is not a method of constitutional interpretation which existed at the founding, nor is it the method of originalism which Robert Bork initially advocated (that version is closer to the philosophy of original intent, although Bork has since embraced the original understanding).
I bring up the newness of Scalian originalism only to point out that, since it is not something enshrined in our history or traditions, it does not deserve any kind of preferential treatment in the marketplace of ideas. Justice Scalia should have to demonstrate just what his method of interpretation brings to the table, and prove that it will produce a better America than the alternatives.
I also would be amused to see what would happen if President Madison were to suggest his kind of living Constitution today. His method of interpretation is far, far more dynamic than anything contained in Lawrence v. Texas or Roper v. Simmons.
It is curious why the Establishment Clause alone should be deemed a "federalist" provision. The whole First Amendment speaks of "Congress" ... for instance, states were left with much more power to regulate speech.
Federalism was but one value honored by the EC, one somewhat weak at that given that traditional establishments (unlike regulation of speech) were dying out by the 1790s (though weak ones held on).
Jackson,
Regarding the HLR essay, I guess I'll reach for my credit card on Lexis, then. ;) While I'll agree that "Scalia should have to demonstrate just what his method of interpretation brings to the table", I do admit to according it preferential treatment to the extent that it comports with my own innate view that a Constitution must have a fixed meaning - of some description - to have any meaning. As I've mentioned over on SCOTUSblog and in other places, I'm fairly convinced by the arguments for originalism (i.e. original meaning), and wholly convinced by Scalia's arguments against foreign law, but I'm open to being pursuaded otherwise. In general, though, of all the criticisms I've read of originalism, none have yet deflected me from sharing the view that "I don't say [originalism] is perfect, I just say it's better than anything else". ;)
By the way, I'd still be interested on your thoughts on the meaning and effect - if any - on the point I raised earlier, viz., the addressing of the 1st Amendment (and only the 1st Amendment) explcitly to the Congress. My interpretation has been drifting towards the conclusion that the other nine amendments grant rights and liberties, while the first amendment - in its entirety, not just the establishment clause - adds additional limitations on Congress. This view would effectively remove the 1st Amendment from the Bill of Rights in some ways (insofar as, if it contains grants individual rights they are - ahem! Whisper it... - penumbras to the text). Which I think is more-or-less what Justice Thomas is arguing in this case.
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If we took the original meaning of the Fourteenth Amendment to heart, Congress could pass plenty of legislation protecting individual rights. I'd like to see some legislation protecting the rights of people to own specific breeds of dog, which is an ancient and appropriate liberty for a free people. Granddad's Buzzy was a gentle dog. I am not being faceious. Our petty liberties are ground away, yet these eccentricities are beloved to our character. Grandad also dyed his beard green for Saint Patrick's Day. Why is his love of the Irish protected under the First Amendment, but his love of dogs is not?
Yours,
Wince