Saturday, July 19, 2008

Selective Exceptionalism?

Adam Liptak’s series on “American Exceptionalism” in the NY Times, the latest installment of which treats the exclusionary rule, connects in some counterintuitive ways with the relatively recent brouhaha about the Supreme Court’s deployment of foreign sources of law. The debate about relying on foreign sources of law has generally seemed to pit those on the left in favor of things like limiting the death penalty against more conservative members of the Court and Congress who are unwilling to rely on international consensus as an indication of what America should do. The topics that Liptak has chosen to discuss, however, indicate that simply polling the world community would not uniformly lead the Court to more liberal results, at least according to our conception of what “liberal” means in the United States.

The Fourth Amendment’s exclusionary rule, prohibiting the admission of evidence obtained through illegal searches and seizures, is a perfect example. As Justice Clark explained in Mapp v. Ohio (1961), which applied the exclusionary rule to the states, the rule functions not simply as a principle of evidence but instead as a “constitutionally required—even if judicially implied—deterrent safeguard.” By punishing the prosecution for obtaining evidence in an illegitimate manner, the rule thereby dissuades police officers from engaging in such conduct in the first place. The exclusionary rule thus furnishes a kind of restraint on governmental intrusion into privacy that would generally be lauded by liberals or libertarians. As Liptak points out, however, other courts—most notably, a Canadian appeals court, the High Court of Australia, and the European Court of Human Rights—have refrained from adopting such an exclusionary rule.

Some of the examples of contravening legal regimes that Liptak cites demonstrate the perils of relying on foreign sources without placing them within the appropriate comparative framework. Although Australia, like the United States, boasts a common law heritage, it notoriously lacks a bill or charter of rights—hence, the considerations that the U.S. Supreme Court is obliged by the Fourth Amendment to take seriously are not similarly available to Australian judges. The European Court of Human Rights, while influenced by U.S. rights jurisprudence, hears appeals from both common and civil law countries, which necessarily boast very different kinds of procedural safeguards for defendants. As Amalia Kessler’s article “Our Inquisitorial Tradition” illuminates, due process may valuably assume disparate shapes within the common and civil law traditions. Hence, the ECHR may justifiably be unwilling to insist upon principles like the exclusionary rule that might fit better within a common than a civil law system. These concerns, as well as others derived from comparative law, should encourage us, in general, to evaluate the relation between any particular instance of American exceptionalism and its justification within the legal system of which it forms a part. In doing so, we may find that selective exceptionalism is not as anathema as it might sound.

Friday, July 18, 2008

The Virtual Conference Cocktail Party

After hearing of a fifteen-foot-high Cass Sunstein being stationed on a screen behind the other participants at a recent conference panel, I started to wonder whether virtual attendance at professional events might soon become the norm. Between our awakening guilt over climate change, the astronomic rise in fuel prices, and the economic and operational woes of the airlines (sidebar vent: US Airways recently cancelled my flight, failed to rebook me, and told me the best option was “ground transportation”), it seems like Skype and other forms of remote convening could become increasingly appealing. The NY Times even reported a recent boom in student enrollment in online classes due to the increased costs of physically commuting to a university venue.

If the incidence of online conferencing does indeed increase, will these events include a cocktail hour? With Skype-like technology, it seems plausible that most aspects of the conference as currently conceived could be fairly easily transmuted into a virtual form. Speakers could continue to deliver their talks or papers and audience members could chime in with questions. At flesh-and-blood conferences, however, social events and the informal conversations that arise are sometimes as important for participants as the official presentations. How, exactly, would the coffee break and the conference reception be adapted for online enjoyment?

I’ve never graduated to a “Second Life,” but even I can imagine a virtual cocktail hour, one that might almost be preferable to its traditional counterpart. We’ve all been caught in The Awkward Conversation at such events, hoping for a friend or acquaintance to intervene heroically. Perhaps, the shoe on the other foot, we’ve had the discomforting suspicion that our interlocutor didn’t really have to go to the bathroom. The online cocktail conversation market could be quite a bit more efficient. Conference attendees might be asked to identify their preferences for kinds of conversations—short or long; in their field or not; centered around a particular issue; and so on. They could then arrange themselves in pairs or groups with separate videoconferencing “rooms.” Perhaps on the main conference screen, attendees would be able to see the arrangements of individuals as they shifted about, and opt to move to another conversation or ask a particular person a question if so inclined.

As with any kind of online interaction, this model of the conference cocktail party might cut down on productive forms of chaos and partake of some of the other downsides of online social interaction. And would the conference budget have to extend to reimbursing participants’ home beverages and snacks? That’s more than the airlines would do….

Tuesday, July 8, 2008

Davis Through a Religious Liberty Lens

Last month, the Supreme Court struck down the so-called “millionaire’s amendment” to the Bipartisan Campaign Reform Act, a provision that had loosened campaign finance restrictions on opponents of self-financing candidates. Since the Davis v. FEC decision, debates have been proliferating over just how much the case will affect the election law landscape. I haven't yet seen anything though that looks at Davis through the lens of the religion clauses, in the way that Pam Karlan's fascinating new piece, "Taking Politics Religiously," 83 Indiana L.J. 1-20 (2008), suggests could importantly illuminate our understanding of the law of democracy.

As a thought experiment, imagine the regulatory scheme at issue in Davis transposed into an Establishment Clause case involving vouchers. State X considers a law creating a voucher program through which each student can spend $2,300 at the school of her choice. Any school participating in the program has to agree to derive all of its current revenue from the vouchers rather than from other sources. In legislative hearings, a number of individuals express concern that, because Church Y is the only one that has already set up educational institutions and is well financed in the region, students would only be able to opt out of the public school system by attending Church Y's schools and the result would be a de facto, if not de jure, establishment of religion. Would it then be permissible, under the Establishment Clause, for the state to allow new competitor schools to receive private funding above and beyond their voucher receipts until they, like the pre-existing religious schools, had enough money to ensure their continued existence?

Reasoning from Davis, the answer would be “no.” Now, envision Davis translated into the language of the Free Exercise Clause. This effort, I believe, points up the disparity between the Davis majority’s construction of the individual right at issue in that case and its usual approach to rights in other contexts. Imagine that, after the U.S. Supreme Court’s decision in Employment Division v. Smith, the Supreme Court of Oregon, based upon state constitutional protections for religious liberty, decided to judicially grant Native Americans an exemption for peyote use from generally applicable drug laws. In the aftermath of this decision, other religious institutions in the vicinity that had ceased drug-related activities central to their religious beliefs because of their illegality lobbied the state legislature for an exemption from state laws regulating such substances. If the state did indeed create such statutory exemptions, could we envision the Native American Church succeeding in a free exercise-based claim that permitting these other groups to engage in religion-related drug use diluted the symbolic meaning of their own religious practices and thereby generated a constitutionally impermissible burden?

It is difficult, in the free exercise area, to contemplate the Court treating an exemption granted to one individual’s or group’s religious practice as in and of itself imposing a burden on others’ free exercise rights. It is, however, precisely this kind of competitive and zero-sum conception of an individual right that Justice Alito adopted in Davis when he explained that the “millionaire’s amendment” imposed a “potentially significant” and “unconstitutional” burden on the self-financing candidate’s “First Amendment right to use personal funds for campaign speech” (Slip. Op. 12, 14). Given this discrepancy, it will be interesting to see how far beyond the campaign finance arena the Court will be willing to extend Davis’s understanding of a right.

Thursday, July 3, 2008

Where Can Legal Academic Work Flourish?

I don’t really mean this as a metaphysical question. Recently, I have soured on the café as a venue for working. Despite—or perhaps because of—decades of addiction to caffeine, and despite a previously inveterate allegiance to coffee shops, from New York, to Cambridge, to Irvine, and even to the Palo Alto Starbucks at the corner of Stanford Avenue and El Camino Real, I now find myself propelled out of every such institution I enter almost as soon as I have stepped inside.

On a few recent occasions, I have thought that I would jostle myself from my routine and head out on the streets of Brooklyn in search of a venue for reading and writing. One place appeared promising and bestowed with a smattering of people seemingly engaged in similar kinds of activity. When I entered though, the agitated fingers tapping on tables rather than keyboards, the I-Pods sitting beside uniform Macs, and the flies making calculated dives at the customers quickly dissuaded me from staying. Most of my other such forays have met a similar fate.

Perhaps this souring on the coffee shop represents a more general phenomenon—just a couple of days ago, Starbucks announced a plan to close six hundred of its stores. Could the café be going the way of the chocolate house, a center of sociability in late seventeenth-century England? Starbucks and its kin seem under attack on at least two fronts. The yogurt craze that commenced in Los Angeles has hit the East Coast now, and places like Pinkberry offer light and airy spaces that promise treats at least supposedly more salutary than a mocha frappuchino topped with whipped cream. And, of course, wine bars may hold renewed appeal for those who pay attention to the reports of red wine’s seemingly miraculous longevity-enhancing powers.

But when, exactly, is it appropriate to work in a wine bar, and what kind of work can one do there? A lawyer friend of mine recently explained how convenient it was to be able to download books to his PDA, because then he could read at the neighborhood establishment without seeming anti-social. According to his account, it is almost always acceptable to consult a Blackberry or its equivalent, but not to bring actual reading material into a bar. So I was a bit surprised recently when walking by a wine bar in Manhattan on the Upper West Side to see someone perched at the window writing, with one hand poised on a glass. Taking heart from this image, and in need of occupying half an hour while waiting for an appointment, I walked in and placed myself on a nearby stool. At first, I furtively secreted my Westlaw printouts beneath the table, hoping the other occupants wouldn’t notice, but when two more women entered and appeared to be making the gestures of writing, I decided I could be more obtrusive about my activity. The experience was quite satisfying, and I concluded that I would definitely return. On my way out though, I looked more closely at what these other seeming Barbeiteren were doing—all three were filling out series of pastel cards in immaculate handwriting. Perhaps wine bars weren’t meant for law work after all….

Tuesday, July 1, 2008

Preserving the Right of Resistance

For a couple of weeks, I will be guest-blogging over at Prawfsblawg and will be cross-posting there.

In light of Justice Scalia's insistence on the exceptional requirements of war in Boumediene, and his excoriation of the majority's opinion for "mak[ing] the war harder on us," I was somewhat surprised to discover very vivid traces of England's seventeenth-century civil wars being treated with distinct approval in Justice Scalia's opinion in Heller. Indeed, as the opinion makes evident, the kind of "self-defense" that the right to bear arms should preserve is not simply the kind that would result in less crime, but rather the kind that would permit citizens to menace government with the threat of its dissolution.

Throughout the case, Justice Scalia refers back to the context of seventeenth-century conflicts between religious dissenters and the Crown, situating his discussion of the English Bill of Rights--which he views as containing the predecessor to the Second Amendment--within this context. His most extended treatment of the history makes evident the extent to which the right was one designed to ensure the capacity to resist political authority:

"Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. . . . These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed. . . . This right has long been understood to be the predecessor to our Second Amendment. . . . It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants . . . [b]ut it was secured to them as individuals, according to 'libertarian political principles,' not as members of a fighting force.

By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone . . . cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, 'the natural right of resistance and self-preservation,' and 'the right of having and using arms for self-preservation and defence' . . . . Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence." (Slip Op. 19-21)

Even if construed as rights to be exercised by individuals, the rights of resistance and self-preservation mentioned here were not, in seventeenth- and early eighteenth-century England, envisioned as simply ensuring the ability of one lone Protestant to attend religious services or protect his land. Instead, these rights were viewed as those which, at least under certain circumstances, could be exercised by a number of insurgents in the service of revolution. Perhaps then we should next ask the Court when, under Heller, we are authorized to bear arms not solely to protect ourselves against burglars in the night but rather against our own government. When would that not just render us enemy combatants?

Saturday, June 28, 2008

A Macbeth in Staccato

From the first lines of text delivered in rapid-fire Polish to the pervasive punctuation of gun fighting, the TR Warszawa Macbeth staged at an outdoor venue beneath the Brooklyn Bridge is characterized by a relentlessly staccato quality. The language of this version bears little resemblance to Shakespeare's text--and when parts of the play's monologues are spliced in, they seem incongruous with their context. The production, which interprets Macbeth in light of the Iraq War and other recent military exploits, turns the play not as much from language to plot, but rather from language, plot, or character, to spectacle and sound. Although a more innovative and intriguing rendition of Macbeth than the version starring Kelsey Grammer a couple of years ago, which simply strung together the major monologues, this nearly opposite take still left me unsatisfied.

The most suggestive part of the production was its decision to segment the stage into four parts, with two levels on each side. The bottom left hand quadrant doubled as something like a locker room--where hoses were used often to try to wash out the prolific quantities of blood--and a banquet space where Banquo's ghost could appear at dinner. On the right side, a laundry room appeared, predictably deployed to try to rinse the blood stains from seemingly vast white sheets as Lady Macbeth wondered whether she could ever get the spot out. During certain moments, activities in two or more quadrants complemented each other in interesting ways. Hence, when the only witch left in this version (doubling as a Muslim woman who, when unveiled, turns out to be bald and dressed in fuschia) tells Macbeth his wife's obsession with the spot is incurable, we see her below in the laundry room, eventually hung on the very sheet she is attempting to clean.

Another powerful moment occurred with the appearance of Banquo's ghost. The ghost is not attired in some elaborate costume--instead, he simply appears stark naked, except for his boots (he died with his boots on?). This very human-looking, but bare, figure is indeed much more terrifying than a stereotypical ghost, and Macbeth's horror seems well placed. Even the impact of this moment was, however, soon eclipsed by the forward driving force of the production. Perhaps the pace of war is not the best for theater.

Saturday, June 14, 2008

Boumediene and the Constitution's Common Law Backdrop

Among its many important pronouncements, Justice Kennedy's opinion in Boumediene took a significant step towards adopting a more historically nuanced approach to the common law backdrop of the Constitution than most of the justices--aside from Justice Souter--have previously espoused. While acknowledging "the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ" (p. 15), Justice Kennedy nevertheless focused some attention on "the common-law writ as it existed in 1789," which constitutes "the absolute minimum" of what the Suspension Clause protects (p. 16). 

The Court's methodological innovations in this analysis were two-fold. First, Justice Kennedy explained that rather than placing absolute priority upon the formal articulation of a rule in England, one must examine "why common-law courts lacked . . . power" to issue the writ in certain contexts (p. 19). In responding to this question, he insisted that, in some instances, prudential concerns dictated the outcome of decisions at common law denying issuance of the writ. 

Second, and even more importantly, Justice Kennedy maintained that the historical indeterminacy of the answer to the question of whether alien prisoners detained abroad were permitted access to the writ at common law did not prevent the Court from concluding that such individuals might be entitled to the writ. As he explained, "Both [the Government's and the petitioners'] arguments are premised . . . upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. . . . We decline, therefore, to infer too much, one way or another, from the lack of historical evidence on point" (p. 22).  Justice Scalia, critiquing the majority's deployment of history in his dissent, instead argued that a lack of definitive evidence should lead to the assumption that no right of access to the writ existed (pp. 7-8).

The majority's treatment of the status of the common law at the time of the Founding may mean that it is finally acknowledging the relevance to constitutional interpretation of something other than what John Reid has aptly named "forensic legal history." As Justice Kennedy wrote, citing to Paul Halliday and G.E. White's The Suspension Clause (pp. 12-15), "Recent scholarship points to the inherent shortcomings in the historical record." These shortcomings are inevitable when history is treated in all its complexity. At the same time, as I argued in Towards a Common Law Originalism, historical indeterminacy should not simply cause the Court to give up in despair; instead, it can valuably investigate the historical record to ascertain the reasons and arguments for the particular positions that this record might support before arriving at its own conclusions. By considering the pragmatic considerations that led English courts to deny the writ in various instances, Justice Kennedy did just that. 

Heaven's Border

Last night, I saw "The Edge of Heaven," the extremely well-executed second film in a trilogy by Turkish director Fatih Akin. The film concerns three parent-child pairs, all involving the only children of widowed or otherwise abandoned fathers or mothers. As some reviewers have commented, the work relies, like "Babel," on the intertwining and coincidental (or missed) encounters among members of its different stories. This aspect of the movie ultimately becomes rather cloying, especially when chance actions of each protagonist seem to narrowly thwart each potential moment of recognition. Nevertheless, the technique does not distract excessively from the formal elegance and excellent acting of the film.

Divided into three episodes, "The Edge of Heaven" adopts something of a Brechtian technique of alienation by announcing the deaths of two of the characters through the titles of the first and second sequences. The effect of this strategy is not, however, to disengage the audience members' emotions entirely. Instead, when we meet Yeter, after seeing the announcement "The Death of Yeter," we view the unfolding of her character already in mourning for her demise. Indeed, there seems to be an intimate connection in this film between naming and death. One character who survives the movie, but by all rights should be the least likely to do so, adopts a pseudonym for a while and is subsequently called by that pseudonym when Turkish authorities ban her girlfriend from speaking her actual name. Her partial anonymity itself appears to preserve her intact.

The third episode shares the movie's own title, "The Edge of Heaven"--but the borders in evidence are quite material rather than celestial. The scene commences with coffins crossing each other in the air, and emerging from planes in Turkey and Germany. We likewise see one of the German residents from the earlier part of the movie re-entering Turkey, having been deported for committing a murder. The only place that could possibly qualify as heaven here is Turkey, and redemption, if it can occur, seems to happen through the rehabilitation of the deceased in the eyes of those left behind.


Thursday, June 12, 2008

From the Executive to Administration

In an article entitled "Our Schmittian Administrative Law," recently posted on SSRN and forthcoming in HLR, Adrian Vermeule makes an extremely intriguing argument about the inevitability of so-called "black" and "grey holes" in administrative law. Whereas a black hole entails the complete exclusion of certain kinds of administrative action from the application of the Administrative Procedure Act, grey holes allow for retention of the facade of the rule of law while simultaneously permitting agencies great latitude in exercising discretion. Although these black and grey holes are of particular relevance in times of emergency, Vermeule contends that emergency situations persist on a continuum with normal times, and that grey holes, in particular, permit the judiciary to employ a sliding scale of standards of review depending on the surrounding circumstances. While Vermeule's deployment of the work of Carl Schmitt in service of explaining certain features of administrative law is quite insightful, there are a few questions that his piece leaves un- or under-answered.

Much of the work of Schmitt himself is fairly insistent on emphasizing the singularity of the sovereign; when Schmitt writes in Political Theology that "Sovereign is he who decides on the [state of] exception" ("Souveran ist, wer uber den Ausnahmezustand entscheidet"), the sovereign is, crucially, an individual. Translating the singular executive of Schmitt into the collectivity of the administrative state is a significant alteration. The individualization of the sovereign in Schmitt corresponds to the exceptional quality of his decision, by contrast with the paradigmatic kind of action in which an administrative agency engages--that of promulgating rules. Here Vermeule could find some of the development of Schmitt's conceptions in the context of continental philosophy and literary theory instructive. For the past ten years, since the English translation of Italian philosopher Giorgio Agamben's book Homo Sacer: Sovereign Power and Bare Life--a work that emerges out of the intersection of Schmitt and Michel Foucault--appeared, scholars of English and Comparative Literature have been engaged in research on both sovereignty and emergency situations (see, e.g., the Cornell conference on "Taking Exception with the Exception," and Julia Lupton's Political Theology blog). In Agamben's hands, Schmitt's assertions about sovereignty become converted--via Foucault's conceptions of discipline and governmentality--into general claims about the modern state's sovereign power over life and death, exemplified by the figure of the camp. This form of the Schmittian paradigm could perhaps illuminate the administrative version of the exception better than Schmitt's own work.

In addition, Vermeule notes early on that he will be focusing upon "emergencies implicating national security, rather than on economic emergencies or emergencies arising from natural disaster." At the same time, however, he adduces some examples pertaining to environmental rule making. As I have discussed in "Economic Emergency and the Rule of Law," there may be some reasons to distinguish among varieties of emergency; in particular, the invocation of a natural--and putatively uncontrollable--emergency may lead courts reviewing action taken during the emergency to adopt a more permissive viewpoint than they might otherwise be inclined to do. Furthermore, the inclusion of environmental examples suggests a potential application for Vermeule's theory beyond its current incarnation. To the extent that the Environmental Protection Agency is willing to consider climate change an imminent natural emergency, could it promulgate rules to deal with this situation based on lesser fact finding than usual and in the absence of conventional notice and comment procedure? Considering the extension of Vermeule's thesis to this and other situations outside the national security context might well be revealing.


Wednesday, June 11, 2008

Chinese Law in Confucian and Other Cultural Contexts

Over the past few days, I have been attending a conference in Ithaca on "Law in Context" that occurred as part of an ongoing collaboration between scholars at the Peking and Cornell University Schools of Law. Many of the representatives of the Peking faculty were on the younger side and appeared both to be introducing new emphases into legal scholarship in China and to be reflecting on the potential perils of the rapid changes that are now occurring not only in China generally but in its legal system in particular. Indeed, one of the trenchant pieces of traditional wisdom that was mentioned early in the conference appeared to carry its implications over through the duration: "More haste might result in less speed."

Along these lines, Ling Bin's paper on "Legal Professionalization in the Context of Legal Popularization" juxtaposed the vantage points of ancient legal reformer Lord Shangyang and the character of Qiuju from the fabulous film starring Gong Li and explained how the turn towards an increasingly systematized version of the rule of law might detrimentally affect some of the earlier sense of each individual being able to access law on her own. The presentation concluded with an animated discussion about this issue among several of the Chinese scholars, some of whom were more enthusiastic about the turn towards professionalization than others. 

Another excellent presentation revealed the ways in which technical legal principles may not entirely dictate the outcome of various cases, even those decided by the Supreme People's Court. According to Lou Jianbo, although there are a number of restrictions on entering into contracts for land--including limitations on foreign ownership as well as on city dwellers purchasing farms,--the Supreme People's Court has on a variety of recent occasions either circumvented these limitations and upheld agreements or crafted remedies that allow even a party prohibited from entering into the contract to obtain some value from it. Eduardo Penalver, commenting on the paper, suggested that the Supreme People's Court might be implementing something like Guido Calabresi's recommendations for how courts should treat statutes that have outlived their utility. Lou Jianbo thought this was a plausible explanation, especially because the agencies that had promulgated some of the restrictions often revised or removed them after the court's decision. At the same time, however, these practices of the Supreme People's Court also seem to bear some resemblance to the tradition of equitable decision-making. When, in particular, an agency has indicated that a stringent rule remains in force, and the court crafts remedies designed not to deprive parties of all value they might have obtained from a contract disregarding this rule, this activity is reminiscent of seventeenth-century English practices in Chancery. Like the Chancellor engaging in equitable decision-making, the Supreme People's Court appears to be providing some relief from the formalities of ordinary law. 

These and other papers--including one on "Corrective Justice in the Confucian Legal Tradition: A Nonexistent Concept"--seemed to indicate that it would be inadvisable to allow the haste to professionalize to leave behind less easily codified or formalized kinds of knowledge or practices that might provide valuable substrates for Chinese law. 

Monday, June 2, 2008

Targeting Religion in Texas

Today a state district judge ordered that the more than 460 children who had been removed from a polygamist sect in Texas be returned to their families. The chief objects of official discussion so far have been, on the one hand, the imminence of child abuse and, on the other, parents' desire to be reunited with their children. Although the sensationalism of the idea that polygamy is alive and well today, in the twenty-first century, has fueled some of the national attention the case has received, religious liberty arguments against the state's actions seem so far to have lain mostly dormant. Yet there is good reason to believe that the state's justifications for acting may contravene the families' First Amendment right to the free exercise of religion.

In recent years, the Supreme Court has moved away from rigorously evaluating burdens placed upon individuals' free exercise of religion. Instead, in the 1990 case of Employment Division v. Smith, Justice Scalia explained that "neutral laws of general applicability" would be presumptively valid, even if they did impede a person's ability to engage in practices central to her religion. This rhetoric distinctly recalled the first religious liberty decisions, nineteenth-century cases involving Mormons' assertion of a right to engage in polygamy as part of their religion. In one of those cases, the 1878 decision in Reynolds v. United States, the Court insisted on the validity of general laws against bigamy, and maintained that permitting polygamy would violate the country's "law of social life." To the extent that Smith echoes Reynolds, then, it would not seem to encourage a religious liberty line of resistance to Texas' actions.

Even after Smith though, the Court has insisted that the state cannot single out practices for adverse consequences simply because they arise out of a belief of a particular religious group or religion as such. When a locality tried to restrict certain forms of animal sacrifice because a Santeria church had moved to town, the Court struck down the resulting ordinance in Church of the Lukumi Babalu Aye v. City of Hialeah, determining that it impermissibly targeted religion.

Texas' allegation that it was justified in removing hundreds of children from the ranch in question because they were being raised under an "umbrella of belief that having children at a young age is a blessing" suggests a similarly impermissible targeting of religious belief as well as practice. Although under the current legal regime individuals have little recourse against neutral laws of general applicability, they can assert rights against this kind of singling out of a religious community. While the U.S. Supreme Court, unlike other countries' legal systems, has been largely unwilling to protect religious beliefs and activities on a group basis, it has at least restricted the extent to which the government itself can target religious groups for adverse consequences.

Furthermore, the Court suggested in Smith that it might still be willing to scrutinize more closely religious liberty claims that were brought in conjunction with other assertions of rights--the so-called "hybrid claimms" that Murad Hussain recently discussed in a Note in the Yale Law Journal. The classic example of such a case was that involving Amish parents' contention in Wisconsin v. Yoder that their children should be exempted from the requirement of attending public school past the eighth grade. Rehearsing the history of the Amish and citing the self-sufficiency of their community within the United States, the Court accepted the proposed arrangement. In that context, not only the parents' right to the free exercise of religion but also their fundamental right to raise their children as protected by the Fourteenth Amendment provided the constitutional support for the decision.

The parents at the Texas ranch could have raised similar arguments for the presence in their case of a hybrid claim in their case of religious liberty and parental autonomy. Not only has the state targeted their community for adverse consequences because of the presence of a "pervasive belief system"--what others might describe as religious doctrine--but the result of this targeting has been to curtail the rights of parents within the collectivity to raise their children without a specific showing of parental unfitness or an imminent harm facing the child.

While there may be very good reason for the state to intervene to protect some of the children being reared at the Texas ranch, the government's asserted grounds for acting suggest that it has impermissibly targeted religion. Asking the courts to decide this case based upon the parents' religious liberty claims might have been helpful, if only to illuminate how little we have actually progressed over the past century and a half in understanding the role of religion in our public sphere.