Madison's Music (21 page)

Justice Samuel Alito, writing for the U.S. Supreme Court's five Republican justices in
Burwell v. Hobby Lobby,
insisted that a religious exemption is mandated under RFRA because it carries “zero cost.”
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Read the Alito opinion carefully; it may be the only time in our nation's history that Republicans embrace the idea of a “free lunch.” According to Justice Alito's voodoo economics, exempting religious employers from paying for insurance coverage for contraceptives carries no cost to their employees. They will continue to receive full health insurance coverage (including contraceptives), because the insurance company will willingly absorb the premium shortfall on the grounds that it's cheaper to provide contraceptive coverage for free than to pay for the ensuing pregnancy. If Justice Alito's free-lunch fairy tale is correct, the
Hobby Lobby
case is nothing more than an example of tolerating the free exercise of religion as long as there is no cost to anyone else. Who can argue with that? But the jury is out on whether health insurance companies will continue providing free contraceptive coverage to large numbers of employees who happen to work for profit-making corporations owned by religious shareholders. My prediction is that if the numbers get high, the insurance companies will demand a government subsidy that shifts the costs to the taxpayers. But, as we'll see in a moment, requiring taxpayers to subsidize the costs of someone else's religious beliefs is exactly what the Establishment Clause forbids. So we haven't heard the end of the Supreme Court's free-lunch story. Moreover,
Hobby Lobby
may be an example of being careful what you wish for. In order to allow a corporate employer to claim a religious exemption, Justice Alito had to dissolve the wall between shareholders in small family corporations and the corporation itself. A small, family-owned corporation is, Justice Alito ruled, just a group of closely related people gathered together to carry out
an economic project. But if the shareholders can “pierce the corporate veil” from the inside in order to claim a corporate religious exemption, why can't creditors, government regulators, and the IRS pierce the veil from the outside to sue the shareholders, as well as the corporation? That's playing with fire because it endangers the bedrock principle of “limited liability” and “corporate separateness” on which our corporate culture rests. Maybe that's why the Chamber of Commerce didn't file a brief in
Hobby Lobby.

Even when a conscientious exemption is not constitutionally required because it would impose an unfair burden on someone else, respect for the primacy of conscience in Madison's text should lead us to try hard to find a way to accommodate the belief or practice
without
harming others.
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That's why we voluntarily provide for conscientious objection from compulsory military service, even in times of national crisis. Because exempting a true believer shifts the burden of military service to someone else, no free-exercise right exists, but, channeling Madison, we allow the believer to contribute to the nation in other ways through alternative service. That's probably what we should do in dealing with employers who have deep conscientious scruples about funding health plans providing for abortion or birth control. Perhaps a form of health care “alternative service” is possible that would ensure full benefits for employees while finding another way for the employer to satisfy the full duties of citizenship. Sure, that's formalistic. In the end, the economic consequences are virtually identical. But if it lets a true believer sleep better at night, Madison would be pleased and our democracy strengthened.

What happens when a particularly finicky believer says that her conscience won't even let her apply for the conscientious exemption? During the Vietnam War, we sent so-called noncooperators to jail in droves for refusing to apply for the CO status to which they were almost certainly entitled. Today, when nuns running a business or academics running a religiously affiliated college claim that they can't even fill out the government form that will exempt them from having to support employee health insurance for
contraception, should the Supreme Court treat them as it treated Vietnam War noncooperators? I think the answer is no. We fell short of Madison's music when we jailed a generation of our most conscientious young men. We would fall short today if we can't find a way to exempt the nuns or academics without forcing them to violate their consciences. After all, everyone needs a
Shabbos goy
sometimes, even the Little Sisters of Mercy.
¹⁰
But whatever we do in an effort to tolerate religious conscience, it cannot shift a significant cost to nonbelievers. That's why religiously based claims to be free to discriminate against blacks or gays in employment or in the delivery of consumer services are such constitutional nonstarters. It would force members of the minority to bear the cost of the true believers' religious bigotry.

THE DARKER SIDE OF DIVINE MADNESS

The two religious conscience clauses function in tandem to ensure both freedom
from
and freedom
of
the most powerful psychological force known to Madison and the Founders: the commands of conscience, especially religious conscience. Madison understood that religion has a dark side capable of inciting true believers to inflict unspeakable cruelties on nonbelievers. Europe was a religious bloodbath; Catholics and Protestants took turns killing each other, uniting only to kill Jews. John Rawls, the leading American political philosopher of the twentieth century, reminded us that the West's vaunted commitment to religious tolerance is really an exhausted truce flowing from the mutual recognition by Europe's Catholics and Protestants that neither could wipe the other out. The Founders knew from personal experience that true believers often use the state to impose their beliefs on others and to persecute, harass, and even annihilate nonbelievers. Much of the New World had been settled by fugitives from government-enforced religious oppression in Europe. Ironically, many religious refugees were perfectly willing to use their newfound political power on this side of the Atlantic to oppress even weaker minorities, to say nothing of exterminating
the “heathens” who were here first. That's why, even before there was a Bill of Rights, Article VI, clause 3 forbade the political majority from imposing religious tests for public office, one of the few protections of civil liberties in the text of the 1787 Constitution. Two years later, Madison opened the Bill of Rights with an Establishment Clause that takes the idea of separation of church and state one step further by forbidding public officials from using their government power to impose religious beliefs on others.

The tangled tale of Moscow's Church of Christ the Savior illustrates both sides of Madison's wisdom. Intended as an act of religious thanksgiving for Russia's defeat of Napoléon in 1812, the church's exterior was not completed until 1860 and was not formally consecrated until 1883, although Tchaikovsky's
1812 Overture
received its first public performance in the church a year earlier. Forty tons of electroplated gold embellished its enormous dome. The bejeweled and marbled interior, among the most lavish in Church history, propelled the Church of Christ the Savior to the center of Russian religious life, drawing Russian Orthodox believers for worship, baptism, and marriage from all parts of the realm. In 1930, Stalin, desperate for cash and in the midst of a purge of Russia's churches, ordered the Moscow church to be dynamited after the jewels and precious metals, especially the golden dome, had been confiscated by the state. Demolition was finally completed in 1937. In its place, Stalin ordered the construction of a secular Palace of the Soviets, a huge modernistic structure designed to celebrate the triumph of communism over superstition. Excavation for the enormous new building was interrupted by World War II and was only fitfully resumed during the postwar years of Stalin's waning power. After Stalin died in 1953, Khrushchev inherited an enormous hole in the ground, which he promptly turned into the immense Moscow municipal swimming pool.

In 1988, in my capacity as national legal director of the ACLU, I visited Moscow as a citizen member of an American government delegation discussing the rule of law with Soviet counterparts. It turned out that the two countries held very different ideas of what
the rule of law means. We saw the idea as ensuring that those in power would be bound by law in dealing with the people. The Soviets saw it as ensuring that the people would be bound by law in obeying those in power. So it goes.

I noticed the enormous Moscow swimming pool on the bus ride from the airport. Although it was a very chilly day, I could see crowds of people in and around the pool, which stretched for what seemed like miles. I wryly commented to my Russian guide that her countrymen were much hardier than mine. “Americans,” I laughed, “would never go swimming in such chilly weather.” The guide looked around to make certain that no one was listening, smiled, and shook her head. “You don't understand,” she said, “they're not swimming. They're baptizing their children. Stalin may have dynamited the Church of Christ the Savior,” she whispered, “but people still come from all over Russia to be married and baptized in its ruins.” Score one for Madison's prescient understanding of the unquenchable power of the religious spirit. That's what Free Exercise is all about.

In 1990, after the implosion of the Soviet Union, Boris Yeltsin built a more modest but still impressive cathedral over the Moscow municipal swimming pool. Completed in 1994, the church once again became a center of Russian Orthodox religious life. This time, though, there was an important difference. The clergy, especially the presiding metropolitan bishop, operated as close allies of the Russian state. When Vladimir Putin took power in 1999, he deployed the state-supported Russian Orthodox Church as an arm of the government, using religion as a form of state-imposed social control. The link between the church and Putin was particularly intense in the person of the metropolitan bishop, who vigorously condemned the demonstrations for greater freedom that were taking place in Moscow and urged from the pulpit Putin's reelection as president. In February 2012, three young women, politically active members of an all-girl punk group called Pussy Riot, staged an amateurish forty-second song-and-dance routine, “Virgin Mary, Chase Out Putin,” in the nave of the church. The young women
chanted opposition to Putin's use of the church as an arm of the state. No services were under way, and the church was almost deserted.

In an appalling overreaction by the state, the three young women were convicted not of the minor administrative offense of disorderly conduct punishable by a fine or a few days in jail but of the felony of “outraging religious sensibilities,” and sentenced to two years in a Russian labor camp.

Score another one for Madison's all-to-accurate understanding of the state's capacity to harness the darker side of the religious impulse. The saga of Moscow's Church of Christ reminds us that Madison designed the Free Exercise Clause to protect true believers driven by conscience to baptize their children in a swimming pool where a church once stood, and the Establishment Clause to protect those very children from state-imposed religious and political conformity.

By the way, the fate of Pussy Riot illustrates why the Supreme Court is so nervous about punishing speakers for saying things that offend hearers. I suspect, though, that our disagreement with Putin's punitive reaction is not about whether Pussy Riot was engaged in protected speech. True believers should be entitled to rules banning unwelcome political activity in their church. But two years in prison for a minor transgression is indefensible. It's another reminder that the care and feeding of the First Amendment requires attention to the back-end issue of sanctions as well as the front-end issue of whether or not speech is protected.

HARMONIZING THE RELIGION CLAUSES

The two religion clauses display inconsistent attitudes toward religion. The ban on enacting laws “respecting an Establishment of religion” is deeply suspicious of religion, guarantying Americans the right to be free from state-imposed religious activity. The ban on laws denying the “free exercise of religion” is deeply supportive of religion, guarantying Americans the right to practice religion
vigorously and openly. Many observers have noted the potentially discordant relationship between the two clauses. In fact, government efforts to assist the free exercise of religion may cross the line and become forbidden establishments of religion. Conversely, what appears to be a forbidden establishment of religion may also be defended as a government effort to make it easier for private citizens to exercise their religion freely. For example, should a law requiring private employers to grant employees paid time off on their holy days be viewed as improperly establishing religion or properly protecting its free exercise? For the Supreme Court, the answer lies on the Establishment side of the line, because such a law shifts a burden to other employees to work on the weekend.
¹¹
The Court was right. Whenever government forces a nonbeliever to bear the costs of a believer's religious observance, it unconstitutionally “establishes” religion. But a rule merely requiring an employer to make a good-faith effort to respect the religious needs of employees without shifting an unfair burden to nonbelievers—perhaps by asking for volunteers and paying those volunteers overtime—would make Madison smile. We call that accommodating the free exercise of religion.

Consider the constitutionality of government-paid military or prison chaplains. Paying a clergyman a government salary to minister to soldiers or prisoners is unquestionably government assistance to religion that would ordinarily be barred by the Establishment Clause. Indeed, that is precisely how an “established” religion operates: the government uses general tax funds paid by nonbelievers to subsidize the operating expenses of a favored church. On the other hand, providing government-paid clergy in the military or in prisons may be necessary to permit believers confined to those institutions to exercise their religion freely. Indeed, failure to provide for military or prison chaplains might well be attacked as a violation of the Free Exercise Clause. Madison believed that government-paid military chaplains were unconstitutional, but even he could be wrong. No serious Establishment Clause objection has arisen to military or prison chaplains in modern times because
the minor burden borne by the taxpayer is dramatically outweighed by the free-exercise benefits of the program. It's a clear net gain for conscience. It's much harder, though, to make the free-exercise argument for government-subsidized “legislative” chaplains who open legislative sessions with a prayer. Unlike prisoners or soldiers, legislators retain freedom of movement (at least until they're convicted), so it's unclear why they would need a government-paid, in-house chaplain to exercise their religions freely. Nevertheless, the Supreme Court has upheld the practice.
¹²
The Court relied on the fact that congressional chaplains had officiated during Washington's administration, and that Madison, as a congressman, had voted for one. The Court's majority overlooked the fact that an older and wiser James Madison profusely apologized for having voted for legislative chaplains, branding them flatly unconstitutional. The five Republican justices have now compounded the error by extending the idea to opening local town meetings with a so-called ceremonial prayer, even when the prayers are overwhelmingly Christian.
¹³
The Court simply ignored the question of why a nonbeliever should be forced to feel like an outsider when she attends her own town's zoning board deliberations. Stand by for Christian prayers before school board meetings and court sessions. How many nonbelieving parents and litigants will dare to refuse to stand and bow their heads for the ceremonial prayer? In upholding government-sponsored ceremonial Christian prayers, the five Republican justices appear to have imported the imperial Free Speech Clause idea of an aristocratic speaker whose interests almost always overwhelm those of a subordinate hearer into the Religion Clauses, where until now hearers were treated with far more respect and consideration. Until
Town of Greece
, the constitutional law regulating government-sponsored religious communications—whether prayers or religious displays on government land—was “hearer-centered.” The Court always asked whether the nonbelieving hearer was made to feel like an outsider in her own land. After
Town of Greece
, nonbelieving hearers subjected to government-sponsored religious speech may well be told, “Get a thicker
skin. After all, this is a Christian country. You're here as a tolerated guest.” What the Court seems to have forgotten in
Town of Greece
is that, unlike private speech in most Free Speech Clause settings, a Christian prayer opening a town meeting is speech by the government, not a private person. It's bad enough to have corporations treated as aristocratic free speakers and sentient religious beings. But when the government starts praying, and we have no choice but to listen, it's time to look out!