President Obama will soon announce his nominee for the next Supreme Court justice. We should pay close attention to how this new justice conceives of Constitutional protections for fundamental rights, especially religious liberty.
The President's criteria involve a refreshing mix of principled legal analysis and personal moral characteristics. In announcing Justice Souter's retirement, President Obama said: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as [sic] just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time."
Empathy?! President Obama had already sent some conservatives on the war path, convinced he will nominate a "judicial activist" who will create policy and "legislate from the bench" (of course, they were convinced he would nominate a raging liberal before he uttered the "E" word). If you want the clearest explanation of what Obama might mean by "empathy," see the excellent legal analysis of Professor Orin Kerr blogging at the Volokh Conspiracy. And most of the debate will be consumed by where the nominee stands on the spectrum of law about access to abortion and individual choice.
But what about the rest of these "constitutional traditions?"
So, here are some questions that I would propose President Obama ask his potential nominees about how they would protect fundamental rights--particularly religious and moral liberty:
1) Do you agree with Justice Souter in McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), that "the Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate?" Do you think this means that sometimes the Courts--on the basis of the Establishment Clause--must stop the government from actively becoming involved in religious speech, displays, or doctrinal endorsements?
2) In Employment Division v. Smith, 494 U.S. 872 (1990), Justice Scalia authored the majority opinion which held that there was no basis for religious exemptions to laws restricting behavior so long as the legislation was neutral and unbiased against particular religions and generally-applicable and binding on to all citizens. Scalia argued that the Court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." This has meant that government regulations that impose burdens on sincerely held religious beliefs are not subject to stronger scrutiny, even though they impose restrictions on an enumerated fundamental right. A wide range of religious conservatives, liberals, and advocates for individual liberty have condemned this decision. Do you agree with it and if not, is there a better alternative that preserves the rule of law while recognizing that individual religious liberty requires special protection under the express terms of the Constitution?
3) Do you agree with Justice Kennedy in Lawrence v. Texas, 539 U.S. 558 (2003), that moral and religious animus or disapproval alone, even when enacted by a majority of a state legislature, is insufficient to ground a law if it violates some fundamental right or liberty protected by the Bill of Rights and Constitution?
4) Do you agree with those like Randy Barnett who argue that the Constitution is built upon a "presumption of liberty that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow fundamental?" Thus, when the government imposes regulations on basic individual liberties, the burden is on the government to prove that the regulation is compelling and necessary, rather than to presume in the first instance that the legislation is Constitutional.
5) As a candidate, Senator Obama said: "If you get a federal grant...you can't use that grant money to proselytize to the people you help and you can't discriminate against them or against the people you hire on the basis of their religion." It is unclear how President Obama will resolve this issue. How would you resolve the conflict between the First Amendment's protection of religious liberty and the establishment clause's prohibition on endorsing particular viewpoints, in this contested area of whether to allow faith-based organizations who receive federal funding to use religious criteria in hiring?
6) Do you think the First Amendment protection of religious liberty allows for, or even requires, exemptions from laws regulating actions or services that violate an individual's conscience? Thus, should a florist who does not want to provide flowers for a legal same-sex marriage ceremony be exempted from state anti-discrimination laws? Can a medical practitioner who does not want to participate in an abortion procedure, or provide information about abortion, be exempted from laws that may otherwise require the services?
While President Obama's nominee will be scrutinized heavily for his or her responses to the de facto abortion litmus test, the answers to some of these questions will reveal much more useful information about the nominee's views of individual liberties and the role of the Constitution in protecting liberty and justice for all.
