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Tradition and Compelling Interests in Religion Cases

Justice Kavanaugh argues for historical practice as a check on judicial intuition


A quick note on a very interesting Supreme Court opinion last week in the religious liberty context, Ramirez v. Collier. The Court awarded a prisoner on death row a preliminary injunction against his execution because the state refused to allow the prisoner to have his pastor pray and lay hands on him in the execution chamber. The Court held that the prisoner would likely succeed in showing that the state's refusal violated his rights under RLUIPA, a federal statute that prohibits prison officials from substantially violating an inmate's exercise of religion unless the officials have chosen the least restrictive means of achieving a compelling state interest.

Writing for the Court, Chief Justice John Roberts reasoned that, although the prison officials had compelling interests in, among other things, preventing interference with an execution and maintaining security in the execution chamber, the officials could employ less restrictive means of achieving those interests. The officials could, for example, limit the volume level of any prayer, restrict the time allowed, and subject clergy to immediate removal if they caused disruptions. The Court noted in this regard that having clergy present to counsel and comfort prisoners at executions was a traditional practice that dated from before the founding of the Nation and that continues in many states today.

It's this last point that makes the case so interesting, from a jurisprudential perspective. As Justice Kavanaugh wrote in a concurrence, the compelling interest test—also known as strict scrutiny—operates in many contexts besides RLUIPA. Strict scrutiny applies in many free exercise cases, for example, notwithstanding Employment Division v. Smith, and in other constitutional contexts as well. But strict scrutiny often makes judges (and scholars) uneasy because it turns on courts' intuitive judgments.  In practice, strict scrutiny often works as a balancing test that depends on judges' prior commitments, which are often contestable.

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates' RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? "It is difficult for a court applying" strict scrutiny, Kavanaugh wrote, "to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear." If the justices' intuitive judgments are all that make the difference, that hardly seems legitimate.

Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. "Although the compelling interest and least restrictive means standards are necessarily imprecise," Kavanaugh wrote, "history and state practice can at least help structure the inquiry and focus the Court's assessment of the State's arguments." Kavanaugh wrote separately to emphasize this aspect of the Court's reasoning.

As my colleague Marc DeGirolami has argued, tradition is an often-overlooked factor in many constitutional doctrines, very much including the Court's establishment and free exercise jurisprudence. Tradition can't solve all problems or remove all indeterminacy, of course. Identifying a tradition can be an intuitive exercise, too, and besides, people will differ on whether a particular tradition is worth preserving in the first place. But, as Justice Kavanaugh suggests, tradition can help make balancing tests more predictable and limit intuition as a factor in judicial decision making. His insight is worth pursuing, in the strict scrutiny context and elsewhere.

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  1. "tradition is an often-overlooked factor in many constitutional doctrines"

    to put it mildly.

      1. "It's this last point that makes the case so interesting, from a jurisprudential perspective."

        No. It's this nitpicking that makes the death penalty appellate business a worthless lawyer scam. A federal statute should condition funding on the passage of a statute in each state ending the death penalty.

  2. In Roe v. Wade Justice Blackmun looked to history and tradition when examining the state's asserted interest in criminalizing abortion.

    Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. ... It is with these interest, and the weight to be attacked to them, that this case is concerned.

    History and tradition for the win!

  3. Clergy may traditionally have been present, but speaking and laying hands?

    Evidence, please.

    1. There was once a tradition of Jesus being personally present at executions.

      1. But allegedly, he didn't stick around after.

  4. At one time, “compelling interest” was natrow, and meant things implicating the very survival of society. Compelling interests involved war, plague, fire, flood, disasters. At the extreme, a compelling interest justifies putting people in concentration camps.

    Then, compelling interests started getting watered down to mean more or less things that might perhaps be arguably related to these things, or even just things the court felt really strongly about. Sandra Day O’Conner said thee state has a compelling interest in prohibiting drugs. The Roberts court assumed Congress has a compelling interest in women having free contraceptives. If practically anything can be a compelling interest, one might as well not bother having a Bill of Rights. They are no obstacle to concentration camps.

    Professor Volokh that prior to Smith, the Court in Religion Clause cases used a special variant of compelling interest that was especially lenient to the government. Things were considered compelling interests for Religion Clause purposes that certainly wouldn’t have been regarded as traditional compelling interests, and perhaps might not have been regarded as compelling interest for other purposes.

    Justice Kavanaugh appears to be contemplating a sort of in between standard, incorporating common law rules of thumb rather than a sharply defined bright line. One of those rules of thumb appears to be that if something his historically been commonly officially sanctioned, then the state’s interest in prohibiting it is indufficient. Another rule seems to be that courts do not interfere with the operation of the military, so military discipline generally trumps religion rights.

    It may be that these rules of thumb become the replacement standard, or perhaps the replacement body of law with no single standard but a collection of rules of thumb and common-law type cases, in any event neither compelling interest as such nor Smith as such.

    1. ReaderY...Is a bright line even possible? You state Justice Kavanaugh pursues an 'in-between standard' but what is the current state of affairs now?

      I interpreted the thrust of Justice Kavanaugh's argument was that strict scrutiny (compelling interest + least restrictive means) alone are insufficient, and can be made more precise to the case at hand using the interpretive lens of history and tradition to apply the strict scrutiny test.

      What would you do differently?

  5. The problem with referring to "tradition" as an authority on what should be allowed and what shouldn't is that it begs the question of whether the practice should have been followed all of that time. Tradition too often becomes its own justification. An appeal to tradition is a logical fallacy, and I think that formalizing a logical fallacy into jurisprudence is an inherently bad idea.

    1. Traditions were practiced by old privileged white men. When do you think they should have been allowed to continue?

    2. " the question of whether the practice should have been followed all of that time."

      You can have deviations between the text and tradition in both directions, I suppose: Both rights denying, and rights extending. I tend to think the rights extending deviations should be given more weight, on the basis that rights are, after all, protections against government, so if the government is allowing an exercise under a right that the text might not strictly read demand, it's a sort of admission against interest by the government.

      1. Here's the problem with granting exceptions to laws of general application for religious reasons: Religion is deeply personal and only the one person who claims to have them knows whether or not these deeply-held religious beliefs are, in fact, deeply-held religious beliefs. Maybe what they are is convenient excuses to break laws.
        When the next death-row inmate comes up for execution and claims that his religion prohibits eating the cloven-hoofed animals, or interacting in any way with people who do. are you violating his religion if the guy who throws the switch on the electric chair had once had a bacon cheeseburger for lunch?

    3. Well, if a compelling interest involves something implicating the survival of the state and society - if this is allowed there is a risk of extreme dasnger - , wouldn’t the fact that the state and society have survived something in the past be at least evidence that it is possible to survive it?

      For example, if the question is whether an otherwise unknown food is poisonous, a tradition of people eating it would be at least relevant evidence thst it isn’t. Compelling interest is, at least arguably, analogous. A tradition of people doing something with state sanction would be at least relevant evidence that prohibiting it isn’t as critical as claimed.

      1. For example, if the question is whether an otherwise unknown food is poisonous, a tradition of people eating it would be at least relevant evidence th[a]t it isn’t.

        People smoke tobacco and have for centuries. Is that relevant evidence that it isn't toxic or carcinogenic?

        I get what you're saying, but this is what I mean. Looking at tradition for what is correct is a fallacy when the mere fact that something has been done for a long time is used as justification for it being the right way to do things. It can be a valid reason to think that something might be a worthwhile practice when seeing that people have done things a particular way for many years, but that practice still has to stand on its own.

        There can be a lot of reasons why something was allowed to exist without government interference in the past. That there was a tradition of people doing that thing with "state sanction" doesn't, by itself, tell us much about whether it should continue to be allowed.

        One area of SCOTUS precedent that concerns me about thinking of tradition this way is in Establishment Clause cases. Even the liberal justices have given weight to traditional practice when I think that they shouldn't have. Town of Greece v. Galloway and American Legion v. American Humanist Association both involved questions over the limits of government to express support for particular religious ideas and use of particular religious symbols. In both cases, the majority rulings that upheld government practice relied on the fact that such practices had existed for a long time as at least part of their reasoning. Legislative bodies have had prayers before meetings since the Founding (Town of Greece) and the cross had been in place for a century (American Legion).

        In my view, such considerations should be almost completely irrelevant. That a majority of people in Blandensberg, Md. liked a 40 ft tall cross honoring WWI dead being in the median of a main street through town a hundred years ago is not evidence that it is consistent with the Establishment Clause, either then or now. People driving by it see a 40 ft tall cross, the primary symbol of the Christian faith. A person either needs to already know that it is a war memorial or be willing to park their car nearby and walk up to it in order to find out that it is meant to honor fallen soldiers. What makes the case such a problem wasn't just the existence of the cross on public land, as there are contexts in which that is not a problem, but that it is a symbol endorsing a particular religion and that its maintenance was payed for by all local taxpayers. A reasonable compromise would have been to allow the monument to be maintained using voluntary donations or even for the land to be transferred to a private party. But the real 'tradition' that the Court was upholding was for the majority faith (Christianity) to use its position in control of the government to advance its religious beliefs.

        1. The fact that people had a history of smoking tobacco absolutely was and is evidence it isn’t carcinogenic. You needed a lot of contrary evidence to overcome it.

          Also, the analogy is imperfect. You can analyze food or tobacco in a lab. Even more importsntly, you can randomize people to smoke or not and see what happens. But there is no lab capable of analyzing the long-term social consequences of human social behavior. You can’t randomize societies. All you have is pretty much what you can observe.

          You can’t do an experiment where you take prople to be executed and assign half of them have clergy lay on hands by somebody not vetted by the prison system and half of them don’t so you can to see what difference it makes. This type of experiment is possible with things like food and tobacco, but it just isn’t possible with behavior of this type.

          1. The fact that people had a history of smoking tobacco absolutely was and is evidence it isn’t carcinogenic. You needed a lot of contrary evidence to overcome it.

            Again, by itself, that people had a history of smoking tobacco is weak evidence that it is safe to do so, if it is evidence at all. People have in the past and in the present expose themselves to all kinds of carcinogens, sometimes knowingly. As for requiring evidence to overcome a proposition, I would say that it would require a lot of evidence to overcome a presumption that deliberately inhaling smoke as a habit would be safe. Common experience with what happens to people when they breathe in smoke in other contexts is sufficient to believe that it would not be.

            You seem to be arguing that simply surviving something is evidence that it isn't bad. That is exactly the kind of poor risk analysis that leads people to do things that are unsafe or unhealthy in the first place.

            Also, the analogy is imperfect. You can analyze food or tobacco in a lab. Even more importsntly, you can randomize people to smoke or not and see what happens. But there is no lab capable of analyzing the long-term social consequences of human social behavior. You can’t randomize societies. All you have is pretty much what you can observe.

            Observations of what happens in nature or human social interactions are valid for evidence-based reasoning, even if controlled experiments may be stronger. There are many areas in natural and social science that are observational only. The point is to reason based on what happens in the real world rather than to make assumptions based on personal preferences. Appealing to tradition biases one's thinking toward those that like the tradition.

        2. Also, there’s a lot of gray between something being “the right way to do things” and being so dangerous it threatens society’s survival. I don’t see how “being the right way to do things” has anything to do with refuting compelling interest, which is what Kavanaugh is using tradition for.

          If there’s a tradition of doing it, that’s evidence it isn’t so dangerous as to threaten society’s aurvival, hence society doesn’t have a compelling interest in supressing it. Thinking that’s an endorsement that it’s “the right way to do things” is like thinking a not guilty verdict canonizes the defendant as a saint.

          1. Also, there’s a lot of gray between something being “the right way to do things” and being so dangerous it threatens society’s survival.

            There's more to what government is for than mere survival. There is also liberty and the pursuit of happiness, if nothing else. Finding out what counts as a "compelling interest" may be very challenging, but you are using that as a justification to narrow it to just those things that would matter for the survival of society (or even individuals). That is an extreme response that seems more about your preferences than a reasoned position.

  6. "The presence of clergy, in other words, is a living tradition."

    This worries me a bit; Traditions can die a natural death, but they can also be assassinated. This verges into "We can violate the right because we started violating the right some years ago!" territory.

    1. At what point did "tradition" become a "right?"

      You made that transition too easily.

      1. We're using tradition here to determine the extent of a right. My point is that you could have had a tradition at the time the right was established, which presumably would illustrate the extent of the right, and then the tradition changes because the right was being violated, and the courts didn't enforce it.

        1. You're referring to rights as if they were absolute, but they are not. The extent of rights is found where one person's right(s) interact with another person's right(s). There are fairly few cases where courts fail to enforce a person's rights, compared with a great deal where one person's rights are measured against another person's rights, and the other person's rights are found to be superior. Here's one you might understand. I have a right to not be penetrated by a bullet, a right of bodily integrity. You have a right to own, possess, and use firearms of your choosing, assuming you can afford to buy it. If you exercise your right in any way that is reckless or negligent, it could put my right to bodily integrity at risk. So, if I ask a court to limit your to use your weapon(s), and get laughed out of that court, can I then be heard to complain about the court "not enforcing my right"?

          1. That's a terrible example. Because, yes, you've got a right not to be shot, and that right is vindicated by having laws against shooting you. What you don't have is a right that others not be ABLE to shoot you, and that's what you're appealing to here, not the right not to be shot.

            1. If I believed you to be neither reckless nor negligent, you'd be correct.

              1. I really don't care what you believe about me, because your belief that you can make other people's rights go away by believing things about them is a load of crap.

    2. See my comment above.

      Tradition here can be used only negatively. If society has survived something in the past, this is some evidence it can survive it in the future, hence prohibiting it isn’t as critical to society’s survival, and the interest not so compelling, as claimed.

      But there is no tradition argument the other way. If our society didn’t survive something in the past, we wouldn’t be here to be arguing. We can argue from historical comparisons to other societies’ failures. But we can’t argue from our own society’s traditions.

      So I don’t think your argument that a tradition-based approach will mean more things will be found compelling is valid.

    3. " This verges into "We can violate the right because we started violating the right some years ago!" territory."

      I suppose you're also concerned when someone tells you "that's not actually a right." because once we can start telling you that things are not rights, what do you have left?

  7. I think perhaps Justice Kavanaugh may be using tradition in a more limited way, as evidence against the existence of a compelling interest. Under the narrow traditional definition of a compelling interest, a compelling interest inplicates socoety’s survival. In asserting a compelling interest against something, the state is claiming the thing is dangerous.

    If something has been done in the past and society survived, that’s relevant evidence it isn’t as dangerous as claimed.

    Used this way, tradition can defeat a claim of compelling interest. But the logic only works one way. If our society didn’t survive something, we wouldn’t be here to be discussing it. One can argue for compelling interest based on historical evidence about collapses or defeats or disasters experienced by other societies, or by heavy blows or near-misses experienced by our own. But one can’t make a tradition argument in favor of compelling interest.

  8. What's the problem here? Send the fellow off to meet God and his religious freedom is intact. with or without being touched by clergy.

  9. I know that for myself, and would imagine especially for blacks and women, I do not want my life to be governed by the traditions and customs from 200 years ago

    1. Ah, but if you were black, or a woman, you might want to have the advantage of the rights a restricted fraction of the population had under the Constitution prior to amendment, rather than having them join you in lacking those rights.

      Be equalized up, rather than have them equalized down.

  10. Somebody's rights going up inherently means somebody else's rights going down.

    1. No, that's only so for positive rights. Negative rights everybody can have, because they don't obligate anybody to do anything except leave you be.

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