Ashutosh Bhagwat

Purpose Scrutiny in Constitutional Analysis

Introduction ..................................................................................... 299 I. The Courts Developing Jurisprudence ....................................... 303 A. Traditional Doctrine: Means Scrutiny Under the Three-Tiered Approach ........................................................ 303 1. Equal Protection Jurisprudence and the Origins of the Three-Tiered Approach ............................ 303 2. Tiers and Free Speech Jurisprudence .............................. 304 3. Tiers and Privacy Jurisprudence ...................................... 305 B. Historical and Practical Limits of the Three-Tiered Approach ........................................................ 306 C. Purpose Scrutiny: Recent Developments in Constitutional Law ................................................................ 312 1. Purpose Scrutiny in Equal Protection Jurisprudence ................................................................. 312 2. Purpose Scrutiny in Free Speech Jurisprudence .............. 316 3. Purpose Scrutiny in Other Areas ..................................... 317 4. Recent Academic Commentary on Purpose A nalysis .......................................................................... 318

Religious Associations: Hosanna-Tabor and the Instrumental Value of Religious Groups

In its 2012 decision in Hosanna-Tabor Evangelical Church & Sch. V. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a “ministerial exception” to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government’s argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was “untenable,” and indeed “remarkable,” because the very existence of the Religion Clauses indicated that religious groups must be treated differently from secular groups. It also rejected the view that its groundbreaking decision in Employment Division v. Smith, which interpreted the Free Exercise Clause extremely narrowly, precluded reliance on the Religion Clauses here, curtly distinguishing Smith on the grounds that it did not involve “government interference with an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor thus appears to stand for the propositions that religious groups are different from secular groups for constitutional purposes and entitled to extra constitutional protections, and further, that religious institutions such as churches possess broader Free Exercise rights than do individuals. In this article, I argue both these propositions are indefensible in light of the text, history, and purposes of the Religion Clauses. I further argue that granting religious institutions special constitutional rights raises some very difficult, ultimately irresolvable boundary problems regarding the scope of the ministerial exception.Ultimately, I conclude that a much better analytic course for the Court to have followed in Hosanna-Tabor would have been to rely on the freedoms of association and Assembly protected by the First Amendment, which the Court so casually rejected. The effect of relying on Assembly and association would be to grant all groups whose activities are relevant to democratic politics a right of autonomy, including a right to select its members and leaders. Religious groups would certainly qualify for such a right (thus affirming the result in Hosanna-Tabor), but so would many secular groups on the same terms. I discuss the ways in which this vision of associational rights fits well with the overall structure of the First Amendment, and with the instrumental role that religious groups (as opposed to individuals) play in our society. Relying on Assembly and association also avoids the boundary problems raised by the ministerial exception, and defuses the tension with free-speech doctrine created by the Court’s preferential treatment of religious groups in Hosanna-Tabor. I conclude by exploring the ways in which the existence of the Religion Clauses may be relevant to religious groups’ Assembly/associational rights, even if they are not the source of those rights.

Details: Specific Facts and the First Amendment

First Amendment theory and judicial decisions have traditionally focused their analysis primarily on the regulation and suppression of ideas, opinions, and advocacy. The great free speech disputes of the Twentieth Century have produced a robust body of law which, at least in the political sphere, gives very strong protection to such speech. But ideas and opinions are not the only sorts of information conveyed by speech. What about facts, and in particular, what about specific facts, what I call details? Cases such as New York Times v. Sullivan and its progeny discuss the proper treatment of false facts, but what of true, accurate details? Here, both the courts and the commentators have been almost entirely silent. An examination of recent cases reveals, however, that factual speech has been at the center of in a number of important First Amendment disputes, and that with the rise of the Internet such disputes are increasing in number. Such cases arise in a wide variety of contexts, including privacy disputes over disclosure of personal details, attempts to regulate dangerous speech, disputes over technical and scientific speech, and disclosure of military or diplomatic secrets. Furthermore, the judicial decisions in this area are in utter disarray. Courts apply inconsistent doctrinal rules to essentially identical cases, and reach wildly varying results. Some reconsideration is clearly needed here.Turning to First Amendment theory, I argue that if one accepts (as I do) the view that the primary, albeit not necessarily the only, purpose of the First Amendment is to protect the process of democratic self-governance, then it will often be true that specific, factual speech is less central to First Amendment values than ideas or opinions, because it contributes little to self-governance. On the other hand, sometimes details can play a central role in self-governance, and furthermore details may also have some, albeit reduced, value because of their contribution to other goals relevant to free speech such as the search for truth. As such, no categorical denial or even reduction of constitutional protection for details is warranted. Instead, I propose a two-tiered approach. In a case where the government seeks to regulate or suppress details (or punish the disclosure of details), courts must first evaluate the relationship between the specific details at issue and the process of self-governance (defined with sufficient breadth). If a direct such relationship exists, then courts should continue to apply the extremely protective doctrine it has developed in cases involving advocacy and ideas, including the strict scrutiny test and the highly stringent incitement test of Brandenburg v. Ohio. However, if the details at issue are only peripherally connected to self-governance or are unrelated altogether, then a more permissive approach is called for. My solution is to apply, in such cases, a version of the intermediate scrutiny test developed in the Supreme Court’s commercial speech jurisprudence. This test is sufficiently robust to permit significant protection for such details, but sufficiently flexible to permit courts to consider both the constitutional value of the relevant speech, and scale of the social harm threatened by disclosure of the details, in drawing a proper balance. I conclude the article by considering how this approach would have altered the analysis in a number of litigated cases.