Sunday, March 12, 2006

Polygamy and Romer

Speaking of polygamy, as below Lefty J does, below the fold is an old exam answer relating to Romer and . It applies the "hybrid right" tool of Employment Div v Smith to marriage, and cooks up a right to polygamy. Not sure if I agree with this; but I was working under a lot of pressure.

It is always welcome to have an opportunity to apply Justice Scalia’s reasoning to Scalia’s opinions. We accept the invitation of Scalia in Employment Div. v. Smith, 494 U.S. 872, to come up with a “hybrid” right involving the Free Exercise clause combined with some other constitutional protection. We can take a look at a couple of Free Exercise cases and what they protect, and we can then see how the hybrid situation affects Scalia’s dissent in Romer v. Evans, especially considering his reliance on the bugbear of polygamy.

Scalia crafts a new test—partially overturning Sherbert—stating that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Smith at 881. If the statute is neutral, it only need serve a valid government purpose.

However, Scalia leaves a loophole to account for various older precedents:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.

Smith at 881.

This exception captures Cantwell v. Connecticut, 310 U.S. at 304-307 (licensing system abridging free speech and free exercise), Murdock v. Pennsylvania, 319 U.S. 105 (tax abridges free speech and free exercise), Pierce v. Society of Sisters, 268 U.S. 510 (right to direct the religious education of one’s children). Indeed, he is not just inventing what he calls the “hybrid situation”:

when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a 'reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment.

Pierce at 233.

But the hybrid situation also opens up a door for more exceptions—in fact, there doesn’t seem to be a simple, principled place to stop. Every right, it would seem, can be made better with a little dose of Free Exercise.

The interesting thing about this hybrid Smith exception is that is survives City of Boerne, 521 U.S. 507, since, after all, Boerne is dedicated to saving Smith. The hybrid argument also doesn’t have to rely on O’Connor’s strong disagreement with the reasoning in Smith, which, while powerful, is still only a concurrence. Thus we don’t need to claim with O’Connor that

the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community.

Smith at 898.

The hybrid situation, as O’Connor says, is used to distinguish away Cantwell and others. But it does more than just that: using the Pierce formulation, it says that heightened scrutiny is deserved whenever the Free Exercise clause interacts with some other constitutional right. It can’t mean that the hybrid situation only arises when the other right is strong enough to win on its own: this would reduce the Free Exercise clause to a dead letter, tagging on to any winning claims like a ribbon. To have any force, the Free Exercise clause must be enough to push a near-miss over the edge to victory.

How does this doctrine affect Romer v. Evans?

Scalia gleefully notes in his Romer dissent that the majority does not mention Bowers v. Hardwick, 478 U.S. 186, at all. But perhaps sensing that the majority is almost brave enough to overturn this decision outright right now, Scalia hedges his bet against the inevitable decline of Bowers. (Justice Kennedy lowers the bar of animus noticeably, and hints that mere moral disapproval is no longer adequate to justify a statute, a hint that will be fleshed out in Lawrence v. Texas.) Scalia goes farther back into the past, dredging up darker demons. He brings back polygamy. The popular rhetoric against polygamy by both sides of the Colorado Amendment 2 debate perhaps convinced Scalia that he had a sure winner.

Perhaps in a popularity contest he does, but legally the argument for Reynolds v. U.S., 98 U.S. 145, is undercut by his own hybrid doctrine.

To apply the hybrid doctrine to polygamy, we need a religion and a fundamental right. Is marriage a fundamental right? (See Sunstein, The Right to Marry, 26 Cardozo L. Rev. 2081.) Let us not rely on modern substantive due process cases after Griswold. It is more elegant to go back to cases Scalia is more likely to unreservedly support, cases he would stand behind even during his confirmation hearings. (It’s interesting to note that Judge Alito has been criticized for being more solicitous to protecting religious conduct than the more liberal type of rights. This is somewhat misplaced, given that it’s likely that strong religious rights generate and support other rights, as well, and not just through this hybrid situation trick.) One such case is Meyer v. Nebraska, 262 U.S. 390, which had a double-plus-good liberal purpose—protecting parents’ rights and stomping on anti-foreign sentiment—but which also included strong affirmations of the foundational right to marriage. Additional early cases supporting marriage are listed in Zablocki v. Redhail, 434 U.S. 374, and given Scalia’s pro-heterosexual marrriage rhetoric in Romer and other cases, it’s likely he’d agree with at least one of those cases that there is a right to marriage without us having to resort to Loving v. Virginia or other late cases.

So if we have a fundamental right, and we have a member of a religion attempting to freely exercise that right in the context of their religion, what do we come up with? We get Cantwell and Pierce and Yoder. Under the hybrid test, to avoid finding a right to polygamy, we need a neutral law and a compelling government purpose to override the Free Exercise clause. It’s pretty easy to attack both of these prongs.

First, the laws are really only facially neutral, with a strong underlying discriminatory purpose. Recall Kennedy’s positions in Romer and Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520. In the latter, any suspicion that animus is the motivation behind the laws generates a Free Exercise investigation. In the former, a statute which inflicts “immediate, continuing, and real injuries” that outrun any likely benefit is assumed to be due to animosity. Both seem to be deliberately stirring up speculation about government purpose to cast doubt on true neutrality.

But Scalia of course is in dissent in all these cases, and doesn’t like to examine the purpose of a statute. Or does he? Look at the second prong. Consider Scalia’s own words in Grutter on the standards of when state purposes can be compelling enough to legitimate discriminatory laws: “If that is a compelling state interest, everything is.” Michigan asserts a broad goal of education policy, raising children, healing communities. Reynolds says that anti-polygamy statutes are a valid instance of outlawing acts in “violation of social duties or subversive of good order.” If you can get away with Reynolds, you can get away with anything, as Scalia might say. If either prong (neutral law and compelling interest) fails to stick, polygamy goes through, and Scalia’s grand adventure in Romer comes to an end.

There is a broader reason to believe that polygamy statutes are a bad idea. Balkin, in his article The Constitution of Status, 106 Yale L. J. 2313, states that any moral judgment that tends to perpetuate unjust status heirarchies should be suspicious. Moral judgments themselves are the foundation we stand on to challenge injustice; but they are too often enlisted to avoid the gradual redistribution of status that democracy hastens. The majority that uses moral judgments against a minority preserves its own feeling of superiority, avoids physical or moral contact with the inferior, and ensures that pleasant feelings of pity or condescension are not replaced with fear or disgust.

Those who are already demons to society, supporting gay marriage, would do well to avoid demonizing. While it is unlikely that Mormons or other polygamous subcultures will welcome the support of gay rights activists, that is not an excuse to exclude polygamists from the gains of expanding civil rights. Justice Harlan the older certainly did not foresee, or hope for, the eventual equality of Chinese-Americans, yet his eloquent Plessy dissent forced this equality on society as surely as blacks have slowly become integrated. If someone humanizes polygamists by advocating their hybrid right to Free Exercise of their religious marital goals, that, too, will also be a small step for civil rights.


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