Edward H. Levi Distinguished Service Professor of Law, University of Chicago
Posted: 06/17/2014 12:18 pm EDT Updated: 06/17/2014 1:59 pm EDT
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One of my former law professors, Harry Kalven, liked to say that “law is the process of choosing among competing analogies.” At its core, legal reasoning is about trying to find insight, or logic, or common sense by comparing different situations and then striving to identify the most important similarities and differences. Analogies open some doors and close others. They shape and direct the analysis.
For example, if it is settled that obscenity is not protected by the First Amendment, then what other types of speech are also not protected by the First Amendment? Are depictions of violence protected by the First Amendment? Are depictions of cruelty to animals protected by the First Amendment? Is opera protected by the First Amendment?
To answer these questions, legal reasoning demands that we begin by asking why obscenity is not protected by the First Amendment and then trying to figure out whether these other forms of speech are similar or different from obscenity in these respects. To do this well requires not only knowledge, but insight, creativity, subtlety, and rigor. Because this is the essence of legal reasoning, a critical question is always whether we are starting the inquiry with the best and most helpful analogy.
As a lawyer and law professor, I pay a lot of attention to this skill of reasoning by analogy. It is, indeed, at the core of what I try to convey to my students. Ordinarily, Supreme Court opinions do this quite well. After all, the justices and their law clerks are quite adept at legal reasoning, and this is usually apparent in the Court’s opinions. I might agree or disagree with the way they engage in the analogical process in any particular opinion, but I can almost always see what and why they are doing and I can respect the way they go about the inquiry, even if I would reach a different conclusion.
Strangely, two Supreme Court opinions this year contain what I can only describe as surprisingly inept examples of legal reasoning. This is baffling, because I know the law clerks who assist the justices in writing their opinions would never themselves make such gaffes. But there they are, clear as day.
The first of these confabulations was in Chief Justice Roberts’ opinion in McCuthcheon v. Federal Elections Commission, which held unconstitutional a federal law that limited the total amount that individuals could contribute to candidates for political office. I’ve already written about how Chief Justice Roberts bollixed up his analysis of free speech law in McCutcheon, so rather than repeat all that here I’ll simply provide a link to that earlier piece.
The second example surfaced on Monday in Elmbrook School District v. John Doe. In that case, a federal court of appeals held that a public school district’s decision to hold high school graduations in a church violated the Establishment Clause of the First Amendment. That clause provides that government “shall make no law respecting an establishment of religion.” The school district sought review by the Supreme Court, but the justices declined to hear the case.
There was nothing unusual in that. In any given year, the justices agree to hear approximately one percent of all the cases that seek Supreme Court review. The decision not to hear a case is not a decision on the merits, but it leaves the lower court’s decision in place. It takes the vote of four justices for the Court to hear a case. In Elmbrook School District, Justice Antonin Scalia, joined by Justice Clarence Thomas, took the unusual step of writing an opinion dissenting from the Court’s decision not to hear the case.
What caught my attention about Justice Scalia’s dissenting opinion was not the core of his argument — that the lower court was wrong in its understanding of the Establishment Clause, but the exceedingly odd way in which he framed the issue. At the outset of his opinion, Justice Scalia began by noting that some people, perhaps many, “are offended by public displays of religion.” He then said that he “can understand that attitude” because it parallels his own attitude “toward the playing in public of rock music or Stravinsky.” Moreover, he noted, he is “especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.” But, he added, the government cannot constitutionally protect his “aversion” to being exposed to such unpleasantness “because of the First Amendment.” To support this proposition, he cited two Supreme Court decisions that had, indeed, held that the government cannot constitutionally prohibit private speakers from having their say in public merely because their speech offends others.
What makes this discussion odd is that none of this has anything to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech (or, rather, religious activity) by the government itself. It is true, of course, that the government ordinarily cannot suppress speech by individuals because the message conveyed offends others. This is so not only for rock music and Stravinsky, but also for flag burning, a Nazi march, and religious expression. The government cannot constitutionally forbid a speaker from handing out religious leaflets because his message offends others. But that has absolutely nothing to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech by the government itself. The analogy drawn by Scalia is flat out wrong.
Justice Scalia then compounds the problem by observing that some “of this Court’s cases,” decisions of which he clearly disapproves, “have allowed the aversion to religious displays” to lead the Court to hold that the First Amendment sometimes prohibits “religious displays” in “public facilities” and “public ceremonies” – “despite the fact that the First Amendment explicitly favors religion” but is “agnostic” about other types of expression.
To be perfectly candid, this borders on incoherence. What Justice Scalia seems to be saying is that because the First Amendment guarantees “the free exercise of religion,” the government should itself be free to engage in “the free exercise of religion.” This is wrong on multiple counts. First, the Free Exercise Clause guarantees individuals the right to practice their religion. It does not give the government the right to practice its religion — or even to have one. This is elemental.
Second, although the First Amendment “explicitly favors religion” in the sense that it guarantees “the free exercise of religion,” it does not “favor” religion when the speaker is the government. To the contrary, the First Amendment explicitly restricts the government with respect to religion, by providing that government “shall make no law respecting the establishment of religion.” The Constitution gives the government broad power to take positions in all sorts of ways, but the one thing it explicitly forbids the government to do is to take positions on religion that constitute acts “respecting the establishment of religion.” Thus, the First Amendment does not “favor” religious expression by the government, it specifically and unambiguously constrains it.
Third, Justice Scalia suggests that the reason the Court has interpreted the Establishment Clause to limit religious expression by the government is because some people have an “aversion to religious displays,” analogous to his aversion to rock music and Stravinsky. But this completely misunderstands the essence of the Establishment Clause, which is not about protecting people from what they might see as the “unpleasantness” of religious expression, but about keeping the government neutral in the realm of religion, because the Framers understood that non-neutrality by the government would prove divisive and destructive of the very notion of “We the People.” It was for that reason, and not to protect people against the unpleasantness of listening to what they might deem offensive religious expression, that the Framers, in Thomas Jefferson’s words, erected a “wall of separation” between state and church.
What is really going on here is that Justice Scalia wants to tear down that wall. As he has made clear in recent opinions, he thinks it’s just fine for the government to endorse Christianity. That, however, was not the understanding of the Framers of our Constitution, and it has never been the Supreme Court’s understanding of the First Amendment. But his passion for that conclusion, and his “aversion” to the opposing view, have clearly clouded his legal reasoning in a way that is both surprising and disappointing.
Supreme Court Religion and Politics RELIGIÓN First Amendment Establishment Clause Freedom of Religion Antonin Scalia