The Volokh Conspiracy - "What Part of 'Make No Law' Don't They Understand?"

Classical Values blogs about a Pennsylvania court decision invalidating a marriage performed by a minister of the Universal Life Church, on the grounds that "the friend didn't qualify as a minister under state law because he had no regular congregation or place of worship"; the post condemns this decision, and also a Pennsylvania bill "that would exclude wedding officiants who are ordained 'by mail order or via the Internet or any other electronic means.'" "What part of 'make no law' don't they understand?" is the title of the blog post. (Thanks to InstaPundit for the pointer.)

I realize the title isn't supposed to be deep legal analysis, but lines like that strike me as a sort of smug textualism — hmm, maybe that would be a good name for an interpretive theory, Smug Textualism — that's pretty hard to justify. Even to the extent the argument is deliberately intended as rhetorical hyperbole, it wrongly trades on an assertion of textual clarity, and on the claim that the other side is betraying the clear and unambiguous meaning of the constitutional text. If the text is in fact not at all clear (and I'll explain below why it's not), the argument is a cheap shot at best and misleading at worst. And the rhetorical device is distressingly common, which is why I want to take the time to address this instance of it.

First, note that "make no law" comes from "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Which part of that didn't the post's author understand — Congress? Congress isn't doing anything here.

Of course, perhaps the First Amendment applies to state legislatures and judges via the Fourteenth Amendment, either through the provision that says "nor shall any State deprive any person of life, liberty, or property, without due process of law" (that's what the Court has held) or the provision that says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (that's what some scholars argue). So which part of that don't you understand — "deprive any person of liberty ... without due process of law," or "abridge the privileges or immunities of citizens of the United States"? The answer is probably both, and rightly so: Both are hard to figure out, especially as they apply to the Religion Clause, at least part of which doesn't seem specifically focused on personal liberty or citizens' privileges or immunities. In any case, there's surely no shame in differences in how to understand the text of either provision.

But let's accept the view that "make no law" applies to states as well as to the federal government, and to judiciaries as well as legislatures. The Court has certainly done so, though note that implicitly relying on precedent rather than text gets us beyond the "What Part of [the clear constitutional text] Don't They Understand?"

There's still the question of exactly how recognizing only certain marriages constitutes "mak[ing a] law respecting an establishment of religion, or prohibiting the free exercise thereof." No-one's religious practice is being prohibited, not even the Universal Life Church's. Nor is such a legal rule clearly a "law respecting an establishment of religion," since no religion is being established as a state religion — not Anglicanism, not Protestanism, not Christianity, not even theism generally.

All this having been said, I actually agree that giving legal preferences to ministers who have a congregation over ministers who don't, or even giving legal preferences to ministers who were ordained in person over those who were ordained by correspondence, is generally a bad idea, and may well be unconstitutional, likely as a violation of the Establishment Clause under Larson v. Valente. One can make sensible precedential arguments for such a judgment of unconstitutionality. One can make sensible prudential arguments. One might even be able to make sensible original meaning or textual arguments, though I'm skeptical about that based on my limited knowledge of the original meaning of the Establishment Clause, and on my sense of the text. (Perhaps the strongest textual argument would be an Equal Protection Clause argument, though even there I think you can't make a decision based on the text alone.)

But one can't make the smug textualist argument that one's critics just don't understand the clear meaning of the constitutional text. There are a few constitutional law matters where a simple appeal to the text is largely dispositive — but only a few (at least among the matters that are likely to be contested), and this surely isn't one of them. And while there are many more for which careful analysis of the text, usually coupled with original meaning, precedent, structure, or other things, can be helpful or even dispositive, the smug "what part of '[textual provision]' don't they understand?" isn't conducive to such careful analysis.

	[Eugene Volokh, November 13, 2007 at 10:31am] Trackbacks "What Part of 'Make No Law' Don't They Understand?" Classical Values blogs about a Pennsylvania court decision invalidating a marriage performed by a minister of the Universal Life Church, on the grounds that "the friend didn't qualify as a minister under state law because he had no regular congregation or place of worship"; the post condemns this decision, and also a Pennsylvania bill "that would exclude wedding officiants who are ordained 'by mail order or via the Internet or any other electronic means.'" "What part of 'make no law' don't they understand?" is the title of the blog post. (Thanks to InstaPundit for the pointer.) I realize the title isn't supposed to be deep legal analysis, but lines like that strike me as a sort of smug textualism — hmm, maybe that would be a good name for an interpretive theory, Smug Textualism — that's pretty hard to justify. Even to the extent the argument is deliberately intended as rhetorical hyperbole, it wrongly trades on an assertion of textual clarity, and on the claim that the other side is betraying the clear and unambiguous meaning of the constitutional text. If the text is in fact not at all clear (and I'll explain below why it's not), the argument is a cheap shot at best and misleading at worst. And the rhetorical device is distressingly common, which is why I want to take the time to address this instance of it. First, note that "make no law" comes from "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Which part of that didn't the post's author understand — Congress? Congress isn't doing anything here. Of course, perhaps the First Amendment applies to state legislatures and judges via the Fourteenth Amendment, either through the provision that says "nor shall any State deprive any person of life, liberty, or property, without due process of law" (that's what the Court has held) or the provision that says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (that's what some scholars argue). So which part of that don't you understand — "deprive any person of liberty ... without due process of law," or "abridge the privileges or immunities of citizens of the United States"? The answer is probably both, and rightly so: Both are hard to figure out, especially as they apply to the Religion Clause, at least part of which doesn't seem specifically focused on personal liberty or citizens' privileges or immunities. In any case, there's surely no shame in differences in how to understand the text of either provision. But let's accept the view that "make no law" applies to states as well as to the federal government, and to judiciaries as well as legislatures. The Court has certainly done so, though note that implicitly relying on precedent rather than text gets us beyond the "What Part of [the clear constitutional text] Don't They Understand?" There's still the question of exactly how recognizing only certain marriages constitutes "mak[ing a] law respecting an establishment of religion, or prohibiting the free exercise thereof." No-one's religious practice is being prohibited, not even the Universal Life Church's. Nor is such a legal rule clearly a "law respecting an establishment of religion," since no religion is being established as a state religion — not Anglicanism, not Protestanism, not Christianity, not even theism generally. All this having been said, I actually agree that giving legal preferences to ministers who have a congregation over ministers who don't, or even giving legal preferences to ministers who were ordained in person over those who were ordained by correspondence, is generally a bad idea, and may well be unconstitutional, likely as a violation of the Establishment Clause under Larson v. Valente. One can make sensible precedential arguments for such a judgment of unconstitutionality. One can make sensible prudential arguments. One might even be able to make sensible original meaning or textual arguments, though I'm skeptical about that based on my limited knowledge of the original meaning of the Establishment Clause, and on my sense of the text. (Perhaps the strongest textual argument would be an Equal Protection Clause argument, though even there I think you can't make a decision based on the text alone.) But one can't make the smug textualist argument that one's critics just don't understand the clear meaning of the constitutional text. There are a few constitutional law matters where a simple appeal to the text is largely dispositive — but only a few (at least among the matters that are likely to be contested), and this surely isn't one of them. And while there are many more for which careful analysis of the text, usually coupled with original meaning, precedent, structure, or other things, can be helpful or even dispositive, the smug "what part of '[textual provision]' don't they understand?" isn't conducive to such careful analysis.