Claude Solnik
Long Island Business News
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Home > LI Confidential > Stop scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
(215) 573-9859 dskeel@law.upenn.edu
(215) 573-9859 dskeel@law.upenn.edu
The Turnabout on Religious Freedom
Liberals used to favor broad claims of liberty. Prof. David Skeel says the Obama-era culture wars helped change that.
ILLUSTRATION: KEN FALLIN
In an age when contentious historical monuments are targeted for destruction, the Supreme Court decided Thursday to let one stand. At issue in American Legion v. American Humanist Association was whether a 40-foot concrete Latin cross on public land violates the First Amendment’s Establishment Clause: “Congress shall make no law respecting an establishment of religion.” By 7-2, the justices said it doesn’t.
“It was a sound, if narrow, decision,” says David Skeel, 57, a law professor at the University of Pennsylvania. “The court seemed to be signaling to the lower courts that they shouldn’t order monuments taken down just because there’s a religious significance to the symbol.” On the other hand, “it said nothing about whether a new monument might fall afoul of the Constitution.” In sum, “the Bladensburg Cross is fine—because it’s old. But that doesn’t mean people are free to erect crosses on public land.”
American Legion is part of a long effort on the part of secular Americans and religious minorities—often represented by nonprofits like the Freedom From Religion Foundation or the American Civil Liberties Union—to keep religion out of public or government-supported domains. By comparison with previous Establishment Clause cases, however, this lawsuit looked footling and rather mean. The symbol in question is on public land—a small patch near a three-way junction in Bladensburg, Md.—but the land was private in 1925, when the cross was erected. Yes, the cross is the foremost symbol of Christianity, but the Bladensburg Cross’s purpose was originally secular: to honor the 49 men from Prince George’s County who died in the Great War.
The American Humanist Association’s failure makes one wonder if the effort to extirpate religion from the public square is fizzling out. Are the great Establishment Clause cases—Engel v. Vitale (1962), which outlawed organized prayer in public schools, or Lemon v. Kurtzman (1971), which stopped states from supporting parochial schools—a thing of the past?
“It certainly looks that way,” Mr. Skeel says. “People used to buy [political philosopher John] Rawls’s ridiculous argument that religious perspectives should be excluded from the public square because they rely on commitments that aren’t ‘accessible to all,’ but you rarely hear that argument today.” In the future, he says, “the biggest battles, I suspect, are going to be over Free Exercise”—the First Amendment’s second clause: “. . . or prohibiting the free exercise thereof.”
Mr. Skeel specializes in corporate, not constitutional, law. He’s an expert in bankruptcy—his “Debt’s Dominion” (2001) is widely said to be the best history of bankruptcy laws, and “The New Financial Deal” (2010), on the Dodd-Frank regulations, is assigned in law-school classrooms. But he has expertise, too, in Christianity and the public sphere. He is an openly evangelical Christian on an Ivy League faculty. In 2014 he published “True Paradox: How Christianity Makes Sense of Our Complex World,” in which he argues science is insufficient and the Christian faith necessary to explain aspects of human experience such as justice and beauty. I met him while he was visiting New York to address the Christian Union.
The past three decades have seen a sea change in attitudes toward religious freedom. In Employment Division v. Smith (1990), the Supreme Court rejected a claim that the Free Exercise Clause obliged the state of Oregon to accommodate Native Americans’ sacramental use of peyote. The state’s law against the hallucinogen was “neutral” and “generally applicable,” Justice Antonin Scalia wrote for the court, and any religious exemption would have to be left to the political process.
In 1993 Congress enacted a statute whose intent was to undo the effect of that ruling. The Religious Freedom Restoration Act mandated that courts consider free-exercise challenges to generally applicable laws under “strict scrutiny,” the high standard Scalia and his colleagues had rejected for constitutional cases. RFRA “was the pride and joy of the Clinton administration,” Mr. Skeel notes. It had bipartisan support: Its chief sponsors were Sen. Ted Kennedy and Rep. Chuck Schumer, and it passed the House by voice vote and the Senate 97-3.
But things changed by 2014, when the court decided Burwell v. Hobby Lobby. The Christian owners of privately held Hobby Lobby Stores Inc. claimed a religious exemption under RFRA from the Health and Human Services Department’s contraceptive mandate under ObamaCare. The justices ruled in the company’s favor, but the vote was 5-4 and dissent, both on and off the court, was fierce.
“Before Hobby Lobby,” Mr. Skeel says, “religious freedom was considered as American as apple pie. When the case reached the Supreme Court, you started seeing ‘religious freedom’ in scare quotes for the first time. I had never seen that. Suddenly there was a shift in the way the free exercise of religion was thought of.”
Attitudes shifted in the legal academy, too, with a growing body of scholarship contending that the First Amendment is too favorable toward faith. “They’re not denying that the Constitution regards religion as special,” Mr. Skeel says. “They’re arguing that it shouldn’t—that there’s no basis for treating religion differently from impulses like conscience or conviction. I think this is all part of the same shift. There’s now an interest in putting limits on the free exercise of religion.”
That’s in part the result of a great incongruity in the ideology of the contemporary left: Progressives insist social reforms implemented in the name of individual autonomy can achieve their aims only by outright coercion. Take Hobby Lobby: Liberal abortion laws are meant to free women from the constraints of unwanted pregnancy, but proponents claim the government can’t accomplish that end without ordering employers to supply abortifacients even if doing so traduces their consciences.
Similarly, the freedom of same-sex couples to marry has been accompanied by an effort to conscript caterers, florists and other small-business people to participate in same-sex weddings—notwithstanding Justice Anthony Kennedy’s assurance in Obergefell v. Hodges (2015) that the faithful “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
That issue reached the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which a Christian baker, Jack Phillips, declined to bake a wedding cake for a same-sex couple and challenged the state’s demand that he do so on the grounds of both religious liberty and freedom of “artistic expression.” Mr. Phillips prevailed in a 7-2 vote; as in American Legion, Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. The majority sidestepped his free-speech claims and ruled in his favor because the commission had shown what Justice Kennedy called “a clear and impermissible hostility” toward his beliefs.
The justices have already sent two similar cases—involving a Washington-state florist and an Oregon baker—back to the lower courts for reconsideration in light of Masterpiece Cakeshop. More such controversies are “almost certainly” in the offing, Mr. Skeel says. That’s partly because “government at all levels has expanded its scope so dramatically over the last several decades. The expansion of government has made principled pluralism—the effort to accommodate individuals and groups with divergent beliefs—increasingly difficult at precisely the same time as the country has become more diverse than ever before.”
Mr. Skeel is skeptical of Mr. Phillips’s argument that baking cakes is a form of free expression. “The baker’s attorneys appealed to free exercise—which ended up winning the case for them, thanks to Colorado’s hostile treatment of the baker,” he says. “But they placed most of their emphasis on free speech, which I thought was unfortunate.” Why unfortunate? “Because it shifts the debate from the real issue. The baker wasn’t worried about his rights as an ‘artist’; he was worried about violating his religious convictions. That was the real issue.”
In Mr. Skeel’s view, Mr. Phillips was “more or less pushed” into taking that approach. In 1997 the justices held that RFRA was unconstitutional as applied against states. Thus Employment Division v. Smith still applies at the state level and the religious can’t claim an exemption under RFRA from a generally applicable state law such as Colorado’s antidiscrimination statute.
Mr. Skeel thinks the justices should start moving away from Smith. “We’d all be better off if the court took an approach more akin to RFRA on Free Exercise questions. That approach would be messier, for sure, but it would encourage the parties to figure out how to settle their differences without litigating every little thing.”
Many pending Free Exercise cases involve abortion—a California regulation requiring health plans to cover the procedure, an Illinois regulation requiring pharmacists to dispense abortion drugs, even a pair of lawsuits in Michigan arguing that Catholic hospitals should be forced to provide abortions. Should religious dissenters necessarily respond to such mandates by lawyering up, or is there sometimes a case for civil disobedience?
It’s a delicate question, and Mr. Skeel takes his time to answer. “The best outcome is one that seeks to respect legitimate religious-liberty concerns without requiring either litigation or civil disobedience.”
I wait for the qualification. “But,” he says at last, “I do think simple disobedience may sometimes be the wiser course—declining to follow the law and accepting the legal punishment for breaking the law. One of the most compelling features of the civil-rights movement was Martin Luther King’s willingness to bear the punishment for the laws he violated, even when he believed the law was unjust. This made a powerful statement, both about respect for law and about his commitment to civil rights. There are costs for anybody who takes that route, obviously. But I do think those who have religious objections to a law should ask themselves if it’s important enough to bear the consequences for violating the law.”
Just as atheism or historical materialism shapes the mindset of a different kind of academic, Christianity affects everything in Mr. Skeel’s scholarship—even bankruptcy law. “American bankruptcy law and the Christian gospel are based on almost precisely the same story,” he tells me. “Both offer a new beginning for those who’ve made a mess of things and don’t seem to have any hope. . . . I was writing on Christianity and bankruptcy as separate topics for 20 years before I saw this connection, but now I see it everywhere.” Example: “When Jesus instructs his disciples to pray ‘forgive us our debts, as we forgive our debtors’ in the Lord’s Prayer, for instance, he seems to be speaking both in spiritual and in economic terms.”
The professor joined the Penn Law faculty in 1999. Has he ever been reviled on campus? Yes—but not for his faith. He serves on Puerto Rico’s Financial Oversight and Management Board and believes the territory’s political leaders have foolishly spent themselves into a fiscal debacle. Last year he wrote in the Journal that “wanted” posters had appeared all over campus, bearing his likeness and declaring him a “mercenary” who “demands the blood of Puerto Rican people to pay rich Wall Street bondholders”—somewhat ironically, he contends, since the board is seeking to restructure Puerto Rico’s debt.
“I’ve never been discriminated against for my Christian faith,” he insists. Never? “I mean, people think I’m crazy. But mainly”—he smiles broadly—“it’s treated as a hobby. You know, we have people who write about sports, we have people into celestial travel, we have this wacky evangelical Christian.”
Mr. Skeel is a cheerful and winsome man, impossible not to like. It’s hard to imagine anybody feeling affronted by him. Then again, you could say the same thing about the Bladensburg Cross.
Mr. Swaim writes a column on political books for the Journal.
Appeared in the June 22, 2019, print edition.
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