Interesting McConnell Free Exercise Decision

[Marty Lederman]

Sorry, I just noticed an oddity in the McConnell opinion that I should have flagged earlier:

McConnell is attempting to demonstrate that religion cannot be singled out for disfavored treatment, even in the service of legitimate secular ends.  But none of the cases he cites in support -- Sherbert, Yoder, Jenison, Quaring, FOP v. Newark, Tomic and Rayburn -- involved a Lukumi-like targeting of religion for disfavored treatment.  There must be some cases out there involving "legitimately" motivated targeting of religion for disfavored treatment (aren't there?  Torcaso?  McDaniel?  Perhaps not.); but it's certainly curious -- and telling? -- that Judge McConnell doesn't cite any.  To be sure, the cases he cites demonstrate that religious animus is not a necessary component of a Free Exercise claim.  But those are all cases (with the slight and partial exception of FOP v. Newark) in which the claim was based on the impact of the state action on religious exercise, rather than, as in last week's Tenth Circuit Shrum case, Lukumi-like disfavored targeting of religion (where the focus is on the state actor's motivation).

But in the Shrum case, the impact on religious exericse is not itself sufficient to establish the Free Exercise violation:  If Shrum had been transferred pursuant to a general policy that all employees must work Sundays, presumably there'd be no constitutional claim.  The crux of the constitutional violation is the employer's discriminatory intent.  Therefore, what's really needed are precedents where such discrimination is deemed unconstitutional despite objectives that are ultimately secular and legitimate.  I'm not suggesting that the dearth of such precedents means the McConnell holding is incorrect -- as I wrote earlier, I agree with it -- but it does make the question a bit trickier . . . and perhaps even novel?
  ----- Original Message ----- 
  From: Marty Lederman 
  To: Law & Religion issues for Law Academics 
  Sent: Tuesday, June 13, 2006 5:53 AM
  Subject: Interesting McConnell Free Exercise Decision


  Michael McConnell wrote the opinion in this Tenth Circuit case issued last Thursday:  http://www.kscourts.org/CA10/cases/2006/06/04-7037.htm.

  Two things of note:

  1.  It includes the best judicial treatment I can recall about why the Free Exercise Clause governs executive decisions, notwithstanding that it is nominally addressed only to "Congress."

  2.  The case involves alleged religious discrimination, but no alleged religious animus.  The employer is alleged to have transferred the plaintiff to the day shift because that assignment would conflict with the plaintiff's responsibilities as a minister, which would in turn prompt the employee to quit.  "To be sure, Officer Shrum does not allege that Chief Palmer held Officer Shrum's faith against him or acted from religious prejudice. Rather, the claim is that religious discrimination was the means to an entirely secular end: Chief Palmer wanted to force Officer Shrum out, and making him choose between his duties as a police officer and his duties as a minister was the method at hand."

  To which Judge McConnell responds:
    But the Free Exercise Clause is not limited to acts motivated by overt religious hostility or prejudice. As its language suggests, the animating ideal of the constitutional provision is to protect the "free exercise of religion" from unwarranted governmental inhibition whatever its source. The first draft, as it came from the pen of James Madison, was even more emphatic: "nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Cong. 451 (June 8, 1789) (speech by Rep. Madison) (emphasis added). Representative Daniel Carroll of Maryland--not coincidentally, as a Roman Catholic, the most conspicuous example in the First Congress of a member of a religious minority--commented that "the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand." 1 Annals of Cong. 757 (Aug. 15, 1789). 
    True to this history, the Free Exercise Clause has been applied numerous times when government officials interfered with religious exercise not out of hostility or prejudice, but for secular reasons, such as saving money [citing Sherbert], promoting education [citing Yoder], obtaining jurors [citing Jenison], facilitating traffic law enforcement [citing Quaring], maintaining morale on the police force [citing FOP v. Newark], or protecting job opportunities [citing Tomic and Rayburn].  Proof of hostility or discriminatory motivation may be sufficient to prove that a challenged governmental action is not neutral, Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993); Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004), but the Free Exercise Clause is not confined to actions based on animus. 

  This seems to me entirely correct.  But I wonder whether it's not also relevant to the parallel question I raised a few weeks ago with respect to the recent prison-fellowship initiatives -- namely, if, as McConnell correctly explains, religion cannot be disfavored in the service of secular, legitimate ends, can it, consistent with the Establishment Clause, be favored in the service of secular ends (such as when the state subsidizes religious transformation programs because they are thought to result in prisoner rehabilitation)?  Or was Madison correct that religion cannot be employed as "an engine of Civil policy"?  See my comments, along with those of Rick Garnett and Doug Laycock, here:  http://balkin.blogspot.com/2006_04_30_balkin_archive.html.  (To be fair, Rick's view is not that religion can (or should) be employed for civil ends, but instead that "the flourishing of religious faith" should itself be a permissible government objective.) 



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