Bill Stuntz on Political Disagreements

You may have already read the tributes to Bill Stuntz in the Harvard Law Review:

http://www.harvardlawreview.org/media/pdf/vol124_stuntz_tribute.pdf

The conclusion to Michael Klarman’s piece was especially moving:

“I think the most important lesson I learned from Bill Stuntz (leaving aside the many lessons about baseball that he thought he taught me) is that people who do not see eye to eye politically can still respect, admire, and cherish one another. In our increasingly polarized culture, people of all political stripes are too quick to vilify those with whom they disagree. Yet it was impossible for anyone to dislike Bill simply because of political disagreements. Nobody who knew him could ever question his integrity, his good will, his compassion for the least advantaged in our society. Through his example, he taught that political disagreements often are about means rather than ends, and that one should try to understand and empathize with those with whom one disagrees, rather than to demonize them. I cannot count the number of people I have told about this important lesson and from whom I learned it. Bill’s legacy will live on for decades in the hearts and minds of thousands of students and scores of colleagues. I believe that he was the greatest law professor of his generation.”

Bill should serve as a model to us all. I wish there was one Bill Stuntz at every law school in the country. Maybe that is too much to hope for. One or two more in legal education would be fantastic.

Why Congress Has Authority to Restrict Circumcision Bans

Background

On June 14, Congressman Brad Sherman (D – Ca.) announced that he planned to introduce the Religious and Parental Rights Defense Act of 2011 (press release here) although the text of the proposed bill has yet to be circulated.  The bill is a response to the recent ballot proposal in San Francisco and similar proposals in other municipalities (e.g. San Diego) aimed at banning circumcision for those under the age of 18 (for more background, see NYTimes: Efforts to Ban Circumcision Gain Traction in California).

I’ve previously addressed why I think the proposed ban in San Francisco is likely unconstitutional both on the grounds that such a ban infringes on a “hybrid right” and because the cartoons published by Mathew Hess may constitute sufficient evidence of religious animus.  However, such claims are far from uncontroversial and it is also possible that a court would deem such legislation constitutional as a permissible facially netural and generally applicable law (see Eugene Volokh’s post considering the difficulties of challenging the bans on First Amendment grounds).  Put differently, even if we think some of the cartoons provide evidence of religious animus, they might not be sufficient to render the proposed bans of circumcision unconstitutional (see Michael Dorf’s post exploring this issue).

The Religious and Parental Rights Defense Act of 2011

Enter Congressman Sherman’s Religious and Parental Rights Defense Act of 2011.  For those fighting against the circumcision bans, Sherman’s bill would have some decided advantages: (1) it would avoid the uncertainty of litigation and (2) would likely dissuade more municipalities from considering such bills by adding another layer of legal hurdles to overcome.

While the text of the bill is not available, Sherman has referenced the Religious Land Use and Institutionalized Persons Act (RLUIPA) as an instance of previous Congressional legislation passed “to protect the free exercise of religious rights from state and local intrusions.”  I therefore consider whether Congress passing a bill analogous to RLUIPA – that is prohibiting the banning of circumcision unless so doing is narrowly tailored to advance a compelling government interest – would represent a constitutional exercise of Congressional power.  As I argue below, I believe the answer is yes under Section 5 of the Fourteenth Amendment (I do not here explore whether federal legislation restricting circumcision bans would also be a constitutional exercise of Congress’s authority under the Commerce Clause and under the Spending Clause both of which were also used to justify Congressional authority to pass RLUIPA).

Why Congress Can Restrict the Ability of Municipalities to Ban Circumcision Pursuant Section 5 of the 14th Amendment:

Section 5 of the Fourteenth Amendment states “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Congress has previously used Section 5 to support passing the Religious Freedom Restoration Act (RFRA); however, the Supreme Court, in City of Boerne v. Flores, held that Section 5 did not provide Congress with the authority to pass the RFRA.

The Supreme Court’s rationale here is important.  According to the Supreme Court, Section 5 only empowered Congress to pass legislation that enforces Fourteenth Amendment rights (which include, via the Due Process Clause, First Amendment rights).  By contrast, Congress cannot add to the substance of those rights.  Applied to our current inquiry, if circumcision bans are not prohibited by the First Amendment, then Congress cannot prohibit them via legislation pursuant to Section 5.

However, the Supreme Court also noted that “Legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the States.’”  The Supreme Court then concluded that the RFRA still could not be justified under Congress’s Section 5 power because there failed to be “a congruence between the means used and the ends to be achieved.  The appropriateness of remedial measures must be considered in light of the evil presented.”   This was largely a result of the wide scope of the RFRA (making it appear that the RFRA was an attempt to modify substantive rights and not simply deter violation of predetermined First Amendment rights).

By contrast, legislation aimed only at circumcision bans would appear to satisfy this requirement.  Such federal legislation would target only blanket bans on the circumcision of minors, including where the circumcision was religiously motivated.  Indeed, as I noted in a previous post, the recent discovery of the “Foreskin Man” cartoons has heightened concern that some of the proposed circumcision bans are motivated by religious animus – a fact that would render such bans unconstitutional under current First Amendment doctrine.  Passing federal legislation in light of growing concerns over the possibility that such bans are motivated by religious animus – even where proving the existence of religious animus would be difficult – would appear to flow from the very center of Congress’s Section 5 authority “to enforce, by appropriate legislation, the provisions of this article.”  (It is also worth noting that for similar reason, courts have generally found that RLUIPA represents a constitutional exercise of Congress’s Section 5 authority although not without significant detractors).

Anti-Semitism, San Francisco’s Circumcision Ban and the First Amendment

As first reported in the San Francisco Chronicle, Matthew Hess – one of the key proponents of the ballot measure to ban circumcision in San Francisco – is also the author of a series of comic books titled “Foreskin Man.”  The series includes evil villains such as “monster mohel“ and has been described by the Anti-Defamation League as incorporating “grotesque anti-Semitic imagery and themes.”  Some of the most offensive images can be found here, here, andhere.  Indeed, as Mitchell Landsberg of the Los Angeles Times (and many others) has noted,

The image of a bearded, black-hatted Jew with an evil grin and a bloody blade seems straight out of the annals of classic European anti-Semitism.

While I believe such images are nothing short of deplorable, I wonder what role they’d play in litigation over whether the circumcision ban violated the First Amendment?  My initial thought is that such cartoons – given Matthew Hess’s positions as the president of MGMBill.org (the group promoting anti-circumcision legislation around the United States, including the proposed San Francisco ban) – could go far in demonstrating that such bills are motivated by religious animus.  While any number of constitutional commentators have noted that difficulties of challenging circumcision bans under Employment Division v. Smith (see, e.g. here, here, here, and here), evidence that such bills are discriminatory – and thereby not facially neutral and generally applicable – would presumably increase the likelihood that courts find such legislative initiatives – or at least those spear-headed by MGMBill.org – unconstitutional.

UPDATE: Check out Michael Dorf’s post where he notes both that “Hess’s role in organizing these initiatives could doom them in the courts” but also that “it’s not obvious that Hess’s motives should be attributed to the San Francisco and Santa Monica voters who might enact circumcision bans.”

Dominique Strauss-Kahn Was Born This Way

This morning’s edition of Good Morning America featured striking images of Dominique Strauss-Kahn moving into a $14 million dollar NYC apartment where he will await trial and Lady Gaga across town, gyrating with buff male dancers, and singing “I Was Born This Way.”

It struck me that Strauss-Kahn might make a similar defense of his actions. He was born this way–with a deep desire to take what he can get. It is the claim of every man who takes advantage of hotel maids and victims of human trafficking. The French press seems to have accepted Strauss-Kahn’s defense. Fortunately, the American press has not. But there is an inconsistency between American condemnation of Strauss-Kahn and its celebration of Lady Gaga’s message.

Being “born this way” is not enough, as most religious traditions understand. We must shape our natural desires toward personal, moral, and social responsibility.

“Vicious Verbal Assault”

There’s a lot of interest in today’s decision in Snyder v. Phelps, the Westboro Baptist Church case.  But I just want to say this:  The Court was right to reject, in its 8-1 decision, Justice Alito’s effort to treat a “vicious verbal assault” leading to emotional distress as just like a physical assault.  Alito’s argument, in effect, was that, even though Westboro’s message was otherwise protected by the First Amendment, it did not have a constitutional right to convey that speech by way of an intentional infliction of emotional distress any more than it would have the right to convey its speech by, say, hitting bystanders over their heads with its picket signs.

But emotions have the odd and distinct character that they are both intensely subjective and in many ways socially constructed.  Westboro’s speech is (objectively) vile, but any of us could reasonably react to it with either profound hurt and distress, or self-empowering righteous indignation, or bemused boredom.  And there’s a profound feedback loop between what we feel, or think we feel, and how law and society respond to those feelings.

I’ve been thinking about this problem of emotional responses a lot, particularly in connection with my discomfort with Justice O’Connor’s famous “endorsement test.”  The constitutional experiment with separation of church and state should be understood not as a salve for hurt feelings but as expression of certain important, and to a large extent distinctly American, political and theological commitments.  We also need to appreciate that, to the extent that hurt feelings do enter the picture, they often arise out of the specifically American church-state dispensation, and not the other way around.  Many religiously serious English Jews, for example, don’t feel “marginalized” by the established status of the Church of England; to the contrary, they see the established Church as an important institutional voice for all religions. If American Jews feel differently, it’s not because they’re more emotionally sensitive, but because they’re the products of a different history and constitutional culture.

Back to the Snyder case, though:  The Court was also right to leave to another day the question of whether statutory buffer zones around funerals would be constitutional.  I think that, within reason, they are.  Funerals are generally private events that, for special reasons, often need to take place in public spaces.  To create a sort of temporary zone of quasi-private quasi-property around such events strikes me as permissible.  The issue here is not protection from emotional distress, but the right to conduct a set of important ritual acts (or their equivalent) without interference or trespass.