I to participated last Fall on a Wisconsin Law Review symposium panel on "Is the Court out of Control?," and I wrote up a short (12-page) article for that. I'm posting it in several pieces; I hope some of you find it interesting, and I also still have time to make any corrections, if need be. Here's the second part (you can also read the first part), which responds to some criticisms of recent Supreme Court decisions:
Of course, there are other things that people might argue should control the Court. Perhaps, for instance, the Court should feel controlled by particular substantive principles, such as equality.
So, for example, some suggest that the Court's new Free Exercise Clause jurisprudence wrongly protects just conservative Christians.[1] But I don't think this is so on the facts (and I say this as a longstanding defender of Employment Division v. Smith[2] and therefore a critic of some of the Court's recent moves towards a broader reading of the Free Exercise Clause[3]). Consider, for instance, the outcomes of the Court's recent religious exemption cases, whether under statutory schemes (RFRA and its sibling RLUIPA) or under the Free Exercise Clause:
- Gonzalez v. O Centro Espírita Beneficente União do Vegetal[4] protected a small Brazilian religion that is centered around the use of a hallucinogenic plant (União do Vegetal translates to "the Union of the Plants"),[5] which is very far removed culturally and theologically from American Christianity.
- Burwell v. Hobby Lobby Stores, Inc.[6] indeed protected conservative Christians who objected to funding what they viewed as coverage of abortion.
- Holt v. Hobbs[7] protected Muslim prisoners who objected to beard bans. Such beard mandates are usually characteristic of Muslims, Jews, and Sikhs.[8]
- Roman Catholic Diocese of Brooklyn v. Cuomo[9] protected Catholics' religious gatherings, but its companion case was Agudath Israel of America v. Cuomo, brought by a Jewish congregation.[10]
- Fulton v. City of Philadelphia[11] protected a Catholic group.
- Dunn v. Ray[12] rejected a Muslim death row inmate's claim about a right to have a spiritual advisor of his faith present during the execution, while Murphy v. Collier[13] accepted such a claim (as to a stay application) by a Buddhist, and Ramirez v. Collier[14] accepted such a claim by a Baptist. But, again, one of the prevailing inmates was a non-Christian, and it appears that the non-Christian inmate who lost did so because the Court concluded his claim was untimely.[15]
Of course, religious freedom protections may end up applying to Christians more often (as they did in three of these six cases) just because there are more Christians in America. You wouldn't expect Jews or Muslims to be the primary beneficiaries when they are two percent and one percent of the population, respectively.[16] But in any event, there doesn't seem to be any real evidence of a departure from religious equality in the cases.
Likewise with regard to race and guns [another criticism that had come up at the symposium -EV]. People of all races may have reason to own guns (just as people of all races may want to vote for gun controls).[17] A recent large survey by a Georgetown professor concludes, for instance, that though black gun ownership percentages are somewhat lower than white gun ownership percentages, 44% of black gun owners reported defensive gun uses as opposed to 29% of white gun owners (perhaps because black people are more likely to live in communities that are threatened by violent crime, and thus are more likely to need armed self-defense).[18] The net result is that the percentage of black people who reported using guns defensively is nearly identical to the percentage of white people.[19] Indeed, perhaps unsurprisingly, the percentage was highest for American Indians among all the identified groups included in the study.[20]
To be sure, black people are also more likely to be victimized by gun violence; but I doubt that a different result in Bruen would have had much effect on criminal gun users. If people want to rob you, they're not willing to comply with a law against robbery, so they're probably not willing to comply with a law against gun possession in public, either. It's the law-abiding people who are most likely to comply with restrictions on gun ownership and gun carrying.
None of this says that that gun rights are good policy. None of it disposes of the constitutional question. But it does undermine the claim that Bruen is about protecting white people.
[1]. [Cite other symposium article.]
[2]. 494 U.S. 872, 872 (1990).
[3]. See, e.g., Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999); Brief Amicus Curiae of Professor Eugene Volokh in Support of Neither Party, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2020) (No. 19-123).
[5]. Centro Espírita Beneficente União do Vegetal in the United States, UDV USA, https://udvusa.org/ [https://perma.cc/8GS5-PW2W] (last visited Feb. 14, 2023).
[8]. Beards are common among Christian Orthodox priests but are apparently not required for them and are certainly not required for the Christian Orthodox laity. See, e.g., Religious Beards: From Sikhs to Jews, HuffPost (Oct. 8, 2014, 10:21 AM), https://www.huffpost.com/entry/religious-beards_n_5947438 [https://perma.cc/87PJ-K2P9]; Patricia Claus, Why Greek Orthodox Priests Have Beards, Greek Rep. (Mar. 18, 2022), https://greekreporter.com/2022/03/18/greek-orthodox-priests-beards/ [https://perma.cc/S9XS-ZF9B]; Concerning the Tradition of Long Hair and Beards, Orthodox Christian Info. Ctr., http://orthodoxinfo.com/praxis/clergy_hair.aspx [https://perma.cc/P2SB-87S6] (last visited Feb. 16, 2023).
[10]. Id.
[11]. 141 S. Ct. 1868 (2021). I set aside here the cases that deal with the exemption to antidiscrimination laws for the clergy and for teaches of religion. This exemption has long been treated as subject to a different rule than normal religious exemption requests. Though these cases did indeed involve Christian defendants, their holdings equally protect all religious groups (for instance, Orthodox Jewish congregations or traditional Muslim groups that don't allow female rabbis or imams).
[12]. 139 S. Ct. 661 (2019).
[13]. 139 S. Ct. 1475 (2019).
[14]. 142 S. Ct. 1264 (2022).
[15]. Dunn, 139 S. Ct. at 661; Ramirez, 142 S. Ct. at 1285–86 (Kavanaugh, J., concurring).
[16]. Religious Landscape Study, Pew Rsch. Ctr., https://www.pewresearch.org/religion/religious-landscape-study/ [https://perma.cc/Z4XJ-CW5K] (last visited Feb. 14, 2023).
[17]. For works explaining the special value of the Second Amendment to minority groups, see, for example, Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Nicholas J. Johnson, Firearms and Protest: Lessons from the Black Tradition of Arms, 54 Conn. L. Rev. 953 (2022); Charles E. Cobb Jr., This Nonviolent Stuff'll Get You Killed: How Guns Made the Civil Rights Movement Possible (2015).
[18]. William English, 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned 7–8, 12 (Georgetown McDonough Sch. of Bus., Research Paper No. 4109494, 2022), https://ssrn.com/abstract=4109494.
[19]. 25.4% of black respondents owned firearms, and 44.3% of those reported defensive gun uses; the numbers for whites were 34.3% and 29.7%. Id. Multiplying, we get an estimate of 10.2% of white American adults having used guns defensively, and 11.2% of black American adults.
[20]. 38.2% of American Indian respondents owned guns and 47.7% of those reported defensive gun uses, so the estimate is that 18.2% of American Indian adults had used guns defensively. Id. at 12; Email from William English, Assistant Professor, Georgetown McDonough Sch. of Bus., to author, Sept. 12, 2022, 8:29 PM.
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