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June 05, 2018


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"Although it really isn’t fair to say that religion was used to justify the holocaust,..."

Yes, it is. Read your history.

You state "a neutral and generally applicable law will not violate the Free Exercise Clause even if it substantially burdens a person’s religious exercise" but, you completely ignore the disparate treatment here.

The court didn't change the "neutrality analysis": it enforced it.

Steven Lubet

Interesting post, Jeff. You write,

"[W]hen the Court used broad constitutional doctrine to attempt to diffuse the antebellum fugitive slave issue, it produced the conditions necessary for the Fugitive Slave Act of 1850, a law that shook the shook the Union to its core."

That was obviously an unintended consequence, but are you saying it was a bad thing that the nation was shaken to its core over slavery? It is accurate that the Fugitive Slave Act hastened the Civil War, but the result was the emancipation of 4 million Americans.

Let me suggest that the Union should have been shaken out of its complacency over slavery. If it hadn't been because of Prigg and the subsequent slave hunting, it would have been something else.

But in any case, the consolidation of anti-slavery sentiment in the North -- brought on by Prigg, Dred Scott, Kansas-Nebraska, and other events -- was ultimately a positive development, leading to the establishment of the Republican Party and the election of Abraham Lincoln.

Deep State Special Legal Counsel

Black Monday. I thought Bowers was history.

Jeff Schmitt

Steve, I am really not trying to take a normative claim about whether the Fugitive Slave Act of 1850 was good for the country. I think you make a strong case that perhaps it was, but that came at the cost of life and liberty for many fugitives (not to mention the war itself).

My point is that the Court tried to prevent sectional conflict over fugitive slaves, but, because of the broad ruling in Prigg, it produced exactly the opposite effect. My normative point is simply that Courts should be careful when broadly ruling on socially divisive issues because the same thing can happen today, as it arguably did with segregation and abortion.

Steven Lubet

Good points, Jeff. You write,

"My point is that the Court tried to prevent sectional conflict over fugitive slaves, but, because of the broad ruling in Prigg, it produced exactly the opposite effect," and "that came at the cost of life and liberty for many fugitives (not to mention the war itself)."

So, what would have been a minimalist version of Prigg, and how would that have resulted in fewer fugitive renditions? And how would it have forestalled the Civil War?

I can see how the opposite ruling in Prigg -- upholding the defendant's conviction under Pennsylvania law -- would have protected fugitives, but your argument seems to be that the court should have reached the same result more narrowly. How would that opinion have been framed, and how would that have helped fugitive slaves? And most importantly, how would it have delayed or prevented the Civil War, which was, in Sumner's words, a "irrepressible conflict"?

Prigg was a shameful decision, especially coming from Story, but how would a lesser Prigg have changed history?

Deep State Special Legal Counsel

I just found out what kind of baked goods they sell. Ding Dongs. Hopefully, Pruitt won't get crumbs on his new mattress.

Jeff Schmitt

Steve, I flesh this out in detail in the paper. You might look at pages 33-34 in particular.

I certainly don't mean to make the claim that Prigg caused the Civil War, but I do think that it caused the Fugitive Slave Act of 1850. That Act, of course, was a major factor in the increasing sectional hostility of the 1850s. It is entirely possible, perhaps likely, that Lincoln would have been elected and the South would have seceded even without the FSA. However, it is hard to know for sure, and I think the Court played an important role. At the same time that Dred Scott fractured the Democratic Party, the FSA--which I argue was made possible by Prigg--fueled the rise of the Republicans.

Let me also be clear on something--I don't mean to suggest that the Court in Prigg reached the right result as a normative matter. The Court should have upheld the PA law, upheld the conviction of Prigg, and ordered Morgan's children free at the very least. I am simply trying to make the descriptive point that the Court's decision was counterproductive when compared to the Justice's goals.

Steven Lubet

It was Kansas-Nebraska, more than the Fugitive Slave Act or Dred Scott, that destroyed the Whigs, fractured the Democrats, gave birth to the Republicans, and led to Lincoln's election. Prigg was a factor, too, but historical forces cannot be disaggregated, and I find it hard to say that Prigg played a determinative role in the irrepressible conflict.

I agree with you that Story's opinion went much further than necessary to decide the case, and it led to unintended consequences, but there were many other forces in play, including a longstanding southern demand for more effective fugitive slave rendition.

Of course I know that you don't think that Prigg reached the right result. But my question is why you think a lesser Prigg -- same bad result but less sweeping in scope -- would have changed anything.


In my view (which I take from Robert Baker), before Prigg, the border states in the North tried to compromise on the fugitive slave issue by complying with the basic constitutional duty to return fugitive slaves while often providing basic legal protections to people claimed as fugitives. Southerners complained about the system even in the 1830s, but it was not a driving source of sectional discord. That all changed in the 1840s, and I think that Prigg is the key to understanding why. As Paul Finkelman argued well before me, antislavery forces used Prigg's broad language on anticommandeering and federal exclusivity as an excuse to channel antislavery opinion into opposition to fugitive slave rendition. Before Prigg, northern moderates found rendition distasteful but constitutionally required. Prigg's broad language, however, convinced many that noncooperation on fugitives was perfectly legal. This in turn led southerners to plausibly argue that the FSA had been nullified by the North.

My paper adds to this by arguing that state noncooperation on such a scale--which was caused by Prigg--was a precondition for the FSA to be a major issue in the Compromise of 1850. I then argue that the unique circumstances of the Compromise empowered a group of southerners who pushed for the most aggressive and proslavery FSA possible. The FSA of 1850, therefore, would never have been passed in any other context.

I also argue that Prigg's broad doctrine directly influenced the content of the FSA. Before Prigg, southerners sought to amend the FSA to require the northern states to enforce it. During the debates in 1850, however, southern congressmen cited Prigg to explain why that approach was not possible.

In sum, if Prigg had been a more narrow decision, the FSA of 1850 might never have been enacted. And, even if it had, I think it might have looked very different.

This is hard to explain in detail in this medium, however, so I would ask anyone who is interested to take a look at the paper. It is linked in the main post.

Thanks for the interesting conversation Steve!

Steven Lubet

Good post; good exchange. Thanks, Jeff.


Curiously there is a cake case pending in the UK Supreme Court (out of the Northern Ireland court of Appeal) - the Asher's Bakery Case ... but the fact pattern is different, perhaps significantly differed.

Asher's is owned/managed by fundamentalist protestants. Gareth Lee, a gay rights activist went to their bakery and asked them to bake a cake with a image containing a "Support Gay Rights" slogan on it, with Sesame Streets Bert & Ernie side by side, Bert's arm around Ernie's shoulders. Asher's refused, Lee sued.

Asher's did advertise that it would decorate cakes with images like a witch for Halloween, a photograph of a person or "a picture of Larne Ladies Football Club" and that could "scan images - bring a favourite photo and we will scan it using edible ink, for all cakes we need three days notice." Lee asserts that he had no idea that Asher's were fundamentalist Christians, that he went into the cake shop innocently and was refused service. So he sued, and the case has wended its way up through the courts, Asher's losing in the court of appeal. (I have to say I really do not believe Lee was unaware that Asher's might refuse; he had been a customer of Asher's off and on, and their religiosity was hardly a secret (people in Norn' Iron are rather obvious about these things.))

Asher's position is that what was being sought by Lee was "compelled speech," i.e., a political statement they disagreed with. They had no objection to baking him a cake, or icing it, but they were not prepared to put a political message on it (the court of Appeal pointed out that it was this particular message, but no apparently political messages in general (refusing any political message might be good policy in the poisonous politics of Northern Ireland.) Since there is no same-sex marriage in Northern Ireland, the question of baking a wedding cake for such a marriage does not arise.

In any event, a somewhat different fact pattern .. but an interesting one.


"Although it really isn’t fair to say that religion was used to justify the holocaust...."

That's a more tricky issue than it looks. First, religion was used to oppose the Holocaust, if mostly ineffectually by the Catholic church, as was the Bekennende Kirche (Confessing Church) branch of Lutherism. However, the more mainstream Deutsche Christen "German Christians" provided much of the theological support form the racial aspects of Nazi ideology and as a "Reich Church" supported a nazified Christianity which did offer theological support to the persecution of the Jews.

Moreover, the Nazi's used Martin Luther's more extreme anti-semitic views (in which he endorsed burning synagogues and Jewish homes, that they be denied safe travel on highways (effectively confining them to urban ghettos), etc. He even could be said to have advocated the murder of Jews. Just about every anti-Jewish book printed in Nazi Germany quoted Luther - while prominent Lutherans (Martin Sasse for example) applauded Kristalnacht, while Himmler regularly cited his works.

Sorry, religion was heavily sued to justify the Holocaust - just as it was less effectively used to oppose it.


The comment about being "hostile to religion" because of one commissioner's comments seems rather absurd coming from SCOTUS, where Justices routinely make all sorts of arguments using analogies like that. It would be like saying a SCOTUS decision were invalid because you did not like one of the hypotheticals posed during oral argument.

Moreover, religion has been used to justify many of the wars throughout history, if not most of them. This is not to say all religion is bad at all times, but certainly religion cannot be the only moral compass - if something would be bad but for religion maybe you need to rethink the religion part.

Jeff Schmitt

Mack and anon, you are correct that religion was used to justify the holocaust. I should have worded the post differently. My only intent was to stress that the history of slavery and racial discrimination in this country has long been justified by religious arguments similar to those made by the baker. This includes the official positions of major US churches. The NAACP even filed an amicus brief reminding the Court of this history


Pay a visit to Northern Ireland - a place where the colour of the socks the pope allegedly wears (red) has a deep political and religious significance for some....

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