Gov't Attorneys, Negotiation, Standing on Rights

[Gaffney, Edward]

1.  I am glad that a government atty jumped in here.  I agree with a lot of
what Rob says.  And I do not engage in litigation with anything like the
frequency as those on the list who are gov attys.  Hence if my rather small
experience has led to a generalization larger than is warranted, I
apologize.  (I don't recall saying that gov attys are generally hostile to
religion; having been one myself, I don't recal having been hostile to
religion myself).   On the other hand, although Rob's experience is clearly
richer than my own, it may still be too small a sample from which to draw
large conclusions.  Or maybe it isn't.  In any case I will leave the task of
generalizing to him and to others.
2.  The two basic points of my engagement with Marci are (1) negotiation is
almost always preferable to litigation, but some aspects of religious are
not subject to negotiation, and (2) it is not always easy to negotiate a
solution even when focusing on a strategy that has more likelihood of
success, the less restrictive alternative standard.
3.  In specific reply to Rob's invitation, I offer some "context" to
illustrate these two points.  The way that Easter is celebrated by
Episcopalians, Lutherans, Roman Catholics, and Orthodox Christians (to
mention a few specific religious communities that observe a very ancient
practice) requires the lighting of a fire, from which a large baptismal
candle is lit and then that light is passed to all members of the
congregation who hold lit candles while renewing their baptismal promises.
 The Cincinnati Fire Dept recently insisted that the fire safety ordinance
gave them the authority to stop this mode of worship.  When the government
proposes to alter a community's form of worship, that shld normally be a
generous clue that it is proposing an egregious violation of free exercise
of religion.  Instead of grasping this rather elementary point, the City
Atty designated to defend the Fire Dept insisted on escalating the
governmental interest to the very compelling interest of saving human lives
from a tragic fire.  One of the recurrent difficulties I have experienced
with the compelling interest standard is the ease with which it can play to
the government's advantage when the level of generalization is made
considerably broader than the purpose of the legislation or the proable
effects of a specific practice (in this case, the lighting of the Paschal
fire and candles).  As in the tax cases in which the Justice Dept insisted
upon a crazy definition of an obscure term in the Internal Rev Code
("inegrated auxilaiary of a church), the Lutherans decided not to cave in.
 For a discussion of the Lutheran tax cases, see Gaffney, "Governmental
Definition of Religion," 25 Valparaiso U. L. Rev. 203 (1991).  When the
Lutherans in Cinci (located, by the way, in the St where the St AG argued in
Boerne that the point of the 14th Amdt was to entrust the *States* with the
power of defending liberty) asked me for help, I suggested that they seek
negotiation along a different line: not to argue over the compellingness or
the rationality (and still less over the intermediateness) of the
government's interest, but to concede that neither the church nor the state
wants anybody to be destroyed in a fire.  My suggestion was to focus on less
restrictive alternatives to banning fires at the liturgy.  For example, I
suggested that someone on each parish be prepared with a proper fire
extinguisher and ready access to a phone to call 911 for help should that be
needed.  The "negotiations" if you can call them that were protracted and
unsuccessful, the church reluctantly took the case to court.  Only when a
trial court judge (Ct of Common Pleas) talked some sense to the City in
chambers did the case reach a mutually satisfactory solution.  I cld give
further "context" about other cases that I have been involved in (resisting
the taxation of the sales of religious literature, defending JW parents
against truancy charges in a state that permits home schooling both by a
common law precedent in 1915 and by statute,  defending a pacifist who
successfully passed a State bar exam but who is unwilling to take the form
of the oath to support to constitution prescribed in the statute, defending
students who wished to take advantage of the Equal Access Act in a school
district fully prepared to litigate every imaginable angle for years after
*Mergens*).  But the two basic points I was trying to make are perhaps
sufficiently clear by now:  (1) I agree with Marci that religious
communities should try to find a way of living at peace with their
neighbors, but sometimes a demand by government will run into conflict with
a tenet or belief that cannot be compromised by the religious believer; and
(2) when pursuing negotiations, I try to think imaginatively about some way
of serving the general goal or interest behind the statute in a manner that
will not cause injury to religious faith or practice, but even this strategy
is not easy.
4.  There is a lot of literature on the catastrophe at Waco that supports
the view that the federal negotiators (not tobe confused with the gov attys
who prosecuted the surviving Branch Davidians) failed to carry out the
negotiations in a manner that seeks a win-win solution.  I refer to the
reports of Dr. Alan Stone and of Dr. Nancy Ammerman to the Justice Dept.
 See also the volume of essays on Waco edited by Stuart Wright (U of
Chicago, 1995 or so), the volume by James Tabor & __ (U of Calif, 1995 or
so), and Dean Kelley's article in *First Things*.  That is a pretty extreme
example of needless violence, and I think the President was pretty badly
misinformed when he placed all the blame for this tragedy on those who were
consumed in the flames.
5.  Rob raises a very important consideration about atty fees, but the focus
shld not be exclusively on the fees that may be awarded under section 1988.
 I am using the term "gov attys" to include not only salried officials
within the DOJ, or the St AG's office, or the local prosecutor of City Atty,
but also those in private practice who represent gov agencies, such as
school districts.  To retrun to the equal access case, the prospect that our
side was correct may -- I will say shld -- have been clear after the S Ct's
ruling in Mergens.  But that did not deter the school officials in Renton,
Wash from proceeding to litigate every imaginable claim to prevent the
possibility that anyone might pray under any circumstances on public school
property.  Lots of money was being paid out to the firm that represented the
sch dist, and those of us who worked on the case were prepared to file a
bill for our services (which, not to put too fine a point on the matter, the
sch district litigated).  At each turn of this very long road the sch dist
attys rebuffed every effort we made to negotiate a sensible solution.
6.  I return to point 1. The experiences I described in par. 3 above are not
offered as the "typical" interaction between a gov atty and a civil
liberties atty, and the reference to thge scholarly literature on Waco is
most emphatically not a "typcial" case.  I do not have enough experience to
ground a generalization as broad as that.  But at least I have offered some
context within which to pursue the discussion about Marci's suggestion about
reasonableness and flexibility.  Ed Gaffney, who promises not to be so
loquacious the next time.

 ----------
From: Rob Weinberg
To: RELIGIONLAW
Subject: Gov't Attorneys, Negotiation, Standing on Rights
Date: Tuesday, January 20, 1998 4:39PM

Perhaps I am missing the context of Ed's position. As one of a couple
government attorneys on the list (who as a group get a generalized bad rap)
I was interested in Ed and Marci's discussion, but refrained earlier,
discretion being the better part of valor. Mediation and negotiation by
government lawyers is a lot more prevalent than most might imagine.

I'm wondering what experiences Ed has had representing religious
organizations or individuals in opposition to the government that would
make him say what he does about the government's recalcitrance to
negotiate. Other than cases such as Babalu Aye, I'm unfamiliar with
sectarian discrimination or the hostility Ed seems to be alluding to.
Usually, the government is the defendant in cases where parties like the
ACLU allege the government has endorsed or *promoted* religion, but I get
the sense that Ed has been involved in cases where the government has been
hostile to a particular religion or religious practice, and generally
unwilling to negotiate. Ed, could you provide context?

As far as generalizations go, it is attractive to assume that government
lawyers are willing to negotiate less than their opponents, but my
experience is that is no more or less true than of lawyers generally. That
is, it's just a convenient generalization about the opposition. Contrary to
popular misconception, government lawyers do not have the time, resources
or manpower to go to the mat on every case and bully their opponents into
submission, particularly in the civil arena.

First amendment religion cases are often difficult to negotiate about
because the parties come at it in absolutist terms to begin with.
Challenged statutes or regulations are more difficult to negotiate than
unwritten informal practices, and require an act of the legislature to
modify. So, often, the act or reg is either defensible or it's not.

The politics of a negotiated settlement are often problematic too, for
obvious reasons. I wish that it were not so. True, government lawyers are
required to "do justice." But government lawyers also have an obligation to
defend the constitutionality of acts of their legislatures, sometimes by
offering limiting construction of the acts.

Another disincentive to negotiation is the spectre of attorneys fees in the
event of a settlement that is not seen in the ordinary contract or tort
case.

I can tell you from the state's perspective that gov't lawyers who rejoice
over the defeat of RFRA do not do so out of hostility to religion at all.
Rather, it's a simple matter of states' rights and local control of their
own institutions without federal court interference that is the appealing
factor.

Ed (and Marci), can you provide this government lawyer a little context?

At 10:20 AM 1/20/98 PST, Ed Gaffney wrote:
>I think Marci misreads my earlier message.  What I urge clients to do is to
>be faithful to their religious commitments.  This does not preclude
>searching for alternative mechanisms of law enforcement that might resolve
a
>conflict.  But my experience -- limited as it is -- is that government
>attorneys insist on the letter of their regulation and are not interested
in
>avoiding conflict.  Unlike Marci, I see the defeat of RFRA as diminishing
>rather than enhancing the reasons why gov attys wld want to enter into
>meaningful negotiations along the lines she admires, that is reasonable and
>flexible.  Marci is right in saying that gov attys are generally not
>"recalcitrant idiots who have no respect for religion."  Our difference is
>one of perception.  I think of gov attys in some instances as putting a
>higher value on winning a case than is necessary or desirable in a republic
>that cherishes the exercise of religion.  In short, I think of the gov
attys
>in these instances as rigid and inflexible, and Marci thinks of some
>religious communities as the ones who need to be counseled to avoid an
>"unreasonable" and "rigid" approach.  Justice Brennan's concurring opinion
>in the *Amos* case contains an interesting discussion on how the content of
>relgious faith is frequently misunderstood by outsiders, as in:  they are
>"unreasonable" and "rigid."   The *reason* for what may appear to outsiders
>to be *rigidity* on the part of religious adherents is that their
>understanding of their traditions does not allow them the freedom to
abandon
>a conviction.  With John Garvey, I note that this is not a reason grounded
>in "autonomy," but in fidelity.  Ed Gaffney
******************
Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/