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TRINITY LAW REVIEW ____________________________________________________________________________________________________________________________________________________________________________________

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ARTICLES LEGAL PERSPECTIVES ON THE HOLOCAUST ARTWORK RECOVERY CLAIMS AND MODERN LAW: CONTEMPORARY ISSUES FROM THE HOLOCAUST Jeremiah R. Blocker ............................................................................ 1 THE POWER OF RELIGION IN A SECULAR SOCIETY John O. Hayward .......................................................................................24 FACING THE BRAVE NEW WORLD OF KILLER ROBOTS: ADAPTING THE DEVELOPMENT OF AUTONOMOUS WEAPON SYSTEMS INTO THE FRAMKEWORK OF THE INTERNATIONAL LAW OF WAR Roni A. Elias ...............................................................................................70

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LEGAL PERSPECTIVES ON THE HOLOCAUST ARTWORK RECOVERY CLAIMS AND MODERN LAW: CONTEMPORARY ISSUES FROM THE HOLOCAUST Jeremiah R. Blocker*

I. INTRODUCTION In 2010, a representative of the Egyptian government formally requested that a valuable artifact be returned to its rightful owners, the Egyptian people, in order to preserve it better.1 The Egyptian official is Dr. Zahi Hawass, Director of Egyptian Antiquities, and the artifact is an imposing obelisk known as “Cleopatra’s Needle.” It currently resides in New York City, NY, where it has stood for nearly a century. This case raises an important question regarding the property rights of the Egyptian government, the alleged owner, and the rights of New York City, the current possessor, to this artifact. Could the Egyptian government successfully recover the Cleopatra’s Needle artifact through the American legal system? Can a case be made under legal precedent, based on Holocaust artwork cases, for recovery of this property from its current possessor, New York City? The recovery of artwork taken during the Holocaust raised an old question in a new context. Looting and plundering valuable artwork and other goods have occurred as long as such valuables have existed. Napoleon plundered a majority of the Italian artworks in the Louvre, located in Paris, which he *

Jeremiah R. Blocker (JD Florida Coastal Law School, LLM Real Estate Development, University of Miami School of Law) has spent the last two years as an assistant state attorney and has an interest in property law as it relates to warfare studies. He is a graduate of the University of Florida with an undergraduate degree in history, Norwich University with a graduate degree in military history. He focuses his current practice on land use and real estate law with a special emphasis on zoning at a private firm in Florida with offices in Jacksonville and Ocala. He is combat veteran with over 12 years of service in the U.S. Army and now serves as a Judge Advocate General officer in the U.S. Air Force. 1 Egypt Threatens to Reclaim Cleopatra’s Needle from Central Park, Citing Negligence, BLOUIN ARTINFO (Jan. 10, 2011), http://www.blouinartinfo.com/news/story/122825 /egypt-threatens-to-reclaim-cleopatras-needle-from-central-park.

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brought to France in the nineteenth century.2 The Oxford Dictionary defines “loot” as goods usually of considerable value taken in war and “plunder” as the taking goods of value by force.3 The theft of Jewish-owned art fits into both definitions.4 While neither of these definitions is a new problem or concept that was brought on solely by the Holocaust, this traumatic event has given the problem a new significance in the modern legal context. Historically, there have been disputes over the legal status of artwork and treasures. These disputes have crossed the spectrum from personal property to public works of art claimed by national governments as cultural landmarks. Whenever valuable personal property is stolen or goes missing, at some point the owners of this property will try to recover it. Inevitably, efforts to recover personal property such as artworks and valuable treasure will be contentious. Questions will almost always be asked that are difficult to answer and often times require a detailed analysis of the facts on a case-by-case basis, like: Can the party claiming the property prove ownership? How did the current possessor come to acquire the property? What is the legal remedy for the parties involved? All of these questions and more have required courts in the United States to address the underlying legal issues that are deeply imbedded in Holocaust artwork recovery cases. No event in modern history has brought the efforts to reclaim stolen personal property and the issues surrounding it to the forefront of the American legal system more than the Holocaust. The Holocaust and the associated plundering of European Jews have given a level of visibility to property rights that is unprecedented in modern Western society and has entered center stage in American courts. This article will demonstrate the Holocaust in twentieth-century Europe changed how stolen property is viewed under the law. Courts in the United States have become the primary venue for recovering Holocaust artwork and deciding these complex property issues. As a direct result of the Holocaust, property law in the United States evolved to address the efforts to reclaim personal property lost or stolen during the Second World 2

STUART E. EIZENSTAT, IMPERFECT JUSTICE: LOOTED ASSETS, SLAVE LABOR, AND THE UNFINISHED BUSINESS OF WORLD WAR II 187 (2003). 3 COMPACT OXFORD ENGLISH DICTIONARY 490 (2d ed. 2001). 4 Id. at 635.

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War. The manner in which the courts have addressed the ownership of stolen personal property will have a long-lasting impact on future attempts to reclaim plundered and stolen artwork. This article will show that establishing good title and determining provenance is critical to ensuring legal ownership under American law. Part II cites two historic examples of property disputes over art and notes the issues they raise relevant to Holocaust artwork-recovery cases. Part III explains the design, execution, and effect of Nazi Germany’s plundering of the Jews. Part IV addresses the legal issues facing the courts tasked with returning the artwork to their rightful owners. Part V analyzes several U.S. cases and distinguishes the European approach to artwork-recovery cases from the American one. Applying American case law, in Part VI, this article outlines the burden of proof for recovering artwork. II. ARTWORK TAKEN PRIOR TO THE SECOND WORLD WAR Establishing legal title and determining the provenance of artworks can always be problematic, but when dealing with artifacts from antiquity, it can become even more complex. Prior to the Second World War, the plunder of valuable artworks and culturally significant artifacts had been a common occurrence. The majority of these artworks dated to ancient times with some exceptions. All the major colonial powers to include Great Britain, France, and Germany, along with the United States, had tolerated the practice of looting for nearly a century. Plundering and looting artworks to bring back to museums in the West has continued well into the twentyfirst century.5 There is an industry where plundered art works from antiquity are being stolen, smuggled, and then sold to “good faith buyers” like art collectors or museums. This is a problem that must be addressed under the law. There are a couple of historic examples of loot that put this problem into context. A.

Cleopatra’s Needle

The controversy over Cleopatra’s Needle is unique in that there is no allegation of theft or illegality.6 The provenance of the obelisk is not in dispute, with both sides agreeing that it was a gift from the Egyptian 5

SHARON WAXMAN, LOOT: THE BATTLE OVER THE STOLEN TREASURES OF THE ANCIENT WORLD 345-46 (2008). 6 ARTINFO, supra note 1.

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government to the United States in 1877 to celebrate a trade agreement.7 However, some Egyptian government officials are asserting that Egypt still has a legal claim to this artifact based on its preservation. According to Dr. Hawass, the United States has essentially forfeited its right to possession of the artwork due to neglect, and the Egyptian government has a legal duty to reclaim this artifact in order to preserve its cultural value to the Egyptian people.8 This is an interesting legal theory that has not been recently tested in the modern United States Court system but serves to illustrate how disputes over property can become complex. B.

Machu Picchu

In 2007, Yale University entered into an ongoing dispute with the nation of Peru over artifacts and artworks explorer Hiram Bingham took to the United States.9 The artifacts originally came into the possession of Yale University in 1921.10 The source of the dispute centered on which party had legal title to possession of these artworks, Yale University or Peru? Yale University made the argument that the artifacts in their possession were legally acquired and therefore legally in its possession.11 Peru argued that the artifacts were never given to Yale but instead were “loaned� to it for a short period that had ended years before.12 The problem for Peru was proving that its government was the legal owner of the artifacts and then overcoming the statute of limitations regarding recovery of these artifacts. A formal demand for return of the items was made in the 1920s, but Peru took no subsequent legal action, which left their claim in doubt under the statute of limitations.13 The courts never decided the issue because Yale University bowed to substantial pressure and reached an agreement with Peru that returned the artworks to that country.14

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Id. Id. 9 Kimberly Alderman, Yale Agrees to Return Machu Picchu Artifacts to Peru: EthicsBased Repatriation Efforts Gain Steam, CULTURAL HERITAGE & ARTS REV. 3 (Fall/Winter 2010). 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. at 4. 8

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C.

Cultural Versus Personal Property

There is a difference between cultural property that national governments are trying to recover through repatriations and personal property that families of victims are trying to recover through replevin actions. The cases involving Jewish stolen art from the Holocaust era almost entirely involve personal property and not cultural. Even though the above examples involve cultural property and repatriations, the underlying legal principles can be the same. The significance of these examples is that they raise two issues that play an important role in disputes over recovering Holocaust artwork: provenance and statute of limitations. III.

PLUNDERING THE JEWS

The National Socialist Party in Germany had a philosophy and ideology that made the Jewish people of Europe both its enemies and victims. Adolf Hitler and his Nazi comrades developed over time a legal system that ensured that victims of the Nazi regime would be plundered of any source of value. In the years leading up to the Second World War, bank accounts, property, and artwork were all targets of the Nazis. A.

The Plan: Initial Measures for Looting the Jews

The plan for taking everything of value from the Jews was simple, easy to execute, and involved various aspects of the German government. Taking artwork and treasure from the Jews served two important purposes: it brought money into the Nazi coffers and fulfilled the artistic cravings of Nazi leaders.15 Funding an expensive war could be supported by robbing the Jews of valuable art and selling it with the proceeds going to the government. In addition, key Nazi leaders such as Herman Göring and Hitler had a taste for art, especially “Nordic” or “Germanic” artworks that accentuated the Nazi ideology. The idea of Jews possessing, much less owning, such treasure was unthinkable, and the organs of the German government were put to good use in depriving the Jews of this art.16 In 1933, “The Law for the Revocation of Naturalization and the Annulment of German Citizenship” was implemented in Germany and 15

MICHAEL BAZYLER, HOLOCAUST JUSTICE: THE BATTLE FOR RESTITUTION IN AMERICA’S COURTS 202 (2003). 16 Id.

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became the main legal mechanism for confiscating Jewish artwork by the state.17 This law began the process for detailed inventories of Jewish property to include private art collections that the state could confiscate.18 Every Jew or member of a political organization opposed to the Nazis, such as Communists, were subject to having their property documented and confiscated by the German state once their citizenship was annulled.19 The ultimate purpose of the law was to deprive Jews of their citizenship and property rights. Later measures implemented by the Nazi regime to confiscate all Jewish property and block Jewish assets would be modeled after this law.20 The plan for confiscation started with the registration of all valued property owned by Jews deprived of their citizenship. All tangible property such as artwork, bank accounts, jewelry, goods, and land was registered and inventoried by government agents. Once all Jewish property was registered and known to the government, plundering this wealth could easily be accomplished. The thorough registration and inventory of Jewish property, followed by confiscation or forced sales, became the basic framework for plundering artwork in Nazi-occupied Europe. B.

The Execution: Aryanization

The concept of transferring Jewish property to German ownership was called “Aryanization” by the Nazis and entailed a massive transfer of wealth. With a legal framework in place and a system ready to implement the policy, throughout the 1930s Jewish wealth was forcibly confiscated.21 As the pressure on Jews in Germany rapidly increased, Jews seeking to flee Germany were forced to sell their artwork at a depressed value, abandon it, or see the government confiscate it. In 1938, the primary event that accelerated Nazi confiscation of Jewish artwork was the Kristallnacht

17

MARTIN DEAN, ROBBING THE JEWS: THE CONFISCATION OF JEWISH PROPERTY IN THE HOLOCAUST, 1933-1945 33-34 (2008). 18 Id. 19 Id. 20 Id. at 162. 21 FRANK BAJOHR, ROBBERY AND RESTITUTION: THE CONFLICT OVER JEWISH PROPERTY IN EUROPE 33–34 (Martin Dean et al. eds., 2007).

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or Night of Broken Glass.22 This violent, yet well-organized, outburst of destruction was aimed directly at Jewish property with the intended purpose to drive the Jews out of Germany. Jews leaving Germany had art assessors employed by the government evaluate the value of their artwork and make forced sales or outright confiscate it. As Nazi Germany annexed and expanded into neighboring European countries, the Jewish populations of these lands began to feel the enormous pressure of this system designed to deprive them of their wealth. Austria in particular was a major target of the Aryanization of Jewish property including art collections.23 In Vienna following the Anschluss, or annexation of Hitler’s Austrian homeland, Austrian Nazis and German agents aggressively seized Jewish property. The system for registration, inventory, and confiscation of Jewish property, which the Nazis had tested for years in Germany, was rapidly implemented in the major urban areas of Austria. Thousands of Austrian Jews were forced to sell their artwork at depressed values before being allowed to emigrate, or the property was simply seized.24 As the Second World War commenced, the process of Aryanization expanded across Europe. In 1939, Hitler began plans for building the “Führermuseum” in Linz, Austria. The purpose was to exhibit great works of art the Nazis stole or plundered. Acquisitions included confiscation and forced purchase of artwork to be transferred to German ownership through Aryanization. Some of Hitler’s favorite artworks that were confiscated from Jewish owners were designated to be displayed in this future art museum.25 In 1940, “The Reichsleiter Rosenberg Institute for the Occupied Territories” (“ERR”) was formed with the purpose of seizing Jewish art collections located throughout Europe.26 As the Nazis invaded and subsequently occupied France, Denmark, the Netherlands, and the rest of Western Europe, the process of Aryanization of Jewish property accelerated. Under Alfred Rosenberg, Eastern Europe, starting with Poland and other Eastern territories, were plundered by different government 22

DEAN, supra note 17, at 84. BAJOHR, supra note 21, at 37. 24 Id. 25 BAZYLER, supra note 15, at 202–03. 26 DEAN, supra note 17, at 198. 23

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agencies competing with each other over the wealth.27 Rosenberg often found his government agency fighting with the Schutzstaffel (“SS”) for possession over plundered Jewish property including artwork.28 The theme of different government agencies in the Nazi regime competing over stolen wealth continued throughout the war. In 1941, special units under the auspices of the Ministry of Foreign Affairs, “Von Ribbentrop Battalion,” began the systematic looting of Jewish art collections from North Africa to Russia. This was another organ of the government carrying out essentially the same plundering operations as the SS and Rosenberg’s agency.29 C.

The End Results

The results of Nazi plundering of Europe are astounding. It is estimated that between 1933 and 1945 the German government stole over 600,000 pieces of art from both Jewish and non-Jewish victims of Nazism.30 This astonishing figure is close to $2.5 billion dollars’ worth of valuable artwork and amounted to a significant percentage of the art in Europe at the time. Michael Bazyler has claimed that the Nazi confiscation of artwork was the most significant plundering of treasure in recorded history.31 As of today, the National Archives estimated that approximately 20% of European artworks were stolen by the Nazis during the Second World War, and nearly 100,000 artworks of value are missing.32 The human costs of the plunder were just as serious and detrimental as the financial costs to the people of Europe and the victims of Aryanization. Countless families whose members were exterminated by the Holocaust were forced to flee as refugees and had to endure the pain of losing family heirlooms and treasures. In the years following the Second World War there was a growing desire to retrieve these lost possessions and 27

Id. Id. 29 Id. at 128–29. 30 BAZYLER, supra note 15, at 202. 31 Id. 32 Greg Bradsher, Documenting Nazi Plunder of European Art, THE RECORD (The U.S. Nat’l Archives and Records Admin., College Park, Md.) (Nov. 1997) http://www. archives.gov/research/holocaust/records-and-research/documenting-nazi-plunder-ofeuropean-art.html. 28

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return them to the families of the victims. Attorney E. Randol Schoenberg gives the example of how his entire family of Jewish art curators and musicians either fled Austria in the early 1930s or was killed later in the war, leaving behind their possessions.33 Later, Schoenberg’s personal quest to understand what happened to his family and their possession would lead him to work on a landmark case that involved returning stolen art work to the families of Jewish victims in Altman v. Austria.34 IV. THE LEGAL PROBLEM The effort to reclaim Holocaust artwork that had been stolen from Jewish victims of the Nazis was not an easy endeavor and was rife with legal and other issues. Recovery efforts were initiated during the war by the Allied governments who recognized the need to swiftly recover the war loot. The American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas was established in 1943.35 The first issue, from a practical perspective, was determining the whereabouts of the stolen art and finding out if the artwork still existed or had been destroyed. The chaotic nature of Europe following the Second World War made this a serious issue with a significant portion of art being destroyed as a result of collateral damage or simply being hidden. The Soviet Union also contributed to the problem by stealing from the Nazis artworks that were already stolen and by using so called “Trophy Brigades” to remove them to Russia.36 In the case of the painting Portrait of a Young Man by Raphael, the Nazis plundered it from the Czartoryski Museum of Art in Krakow, Poland.37 This Renaissance painting was last in the possession of Hans Frank, the Nazi lawyer and governor of Poland under the Nazis, but has never been recovered.38 Despite the extensive efforts of the Allies to recover the stolen artworks, not everything was recoverable, and this presented a problem for those seeking recovery of their former possessions. 33 ROLAND BANK ET AL., HOLOCAUST RESTITUTION: PERSPECTIVES ON THE LITIGATION AND ITS LEGACY 288 (Michael J. Bazyler & Roger P. Alford eds., 2006). 34

Id. at 289. LYNN H. NICHOLAS, THE RAPE OF EUROPA: THE FATE OF EUROPE’S TREASURES IN THE THIRD REICH AND THE SECOND WORLD WAR 222 (Vintage Books ed. 2006). 36 BAZYLER, supra note 15, at 204. 37 NICHOLAS, supra note 35, at 78–79. 38 Id. 35

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Once the artwork was discovered, the second issue, from a legal perspective, was establishing the provenance of the artwork. Determining the source or origin of the artwork was critical in a legal context to ultimately establish ownership of the artwork. However, finding out the background of artwork was a challenge that families of Holocaust victims sometimes found difficult. The reasons for this are varied, but one of the most important was the chaotic nature of Europe following the war and the sheer magnitude of paintings changing hands in the pre-war and post-war periods. Hundreds of thousands of artworks were sold to dealers around the world by Nazi agents. Museums and private art collectors in the United States came to acquire huge quantities of stolen art.39 Thomas Kline is quoted as stating that the art community failed to ask questions about the origin of the artwork that came into their possession by willfully preferring to ignore the provenance of the treasures.40 In other cases, such as in Poland, the artwork was seized from Poles who had acquired the treasures either through theft or having been left the property by their Jewish neighbors.41 Fortunately, the Nazis kept good records of the paintings they stole, and this would later prove useful in determining the provenance of disputed pieces.42 The third issue, from a legal context, is determining who should have possession and who the rightful owner is under the law. After the art was located and the provenance determined, establishing proper ownership is critical in deciding Holocaust art-recovery cases in the United States. Many families may believe that a particular painting belonged to their relatives that were killed, but the law may establish another as the rightful owner. Ultimately, in the United States, courts determine good title based on the provenance, possession, and rightful ownership of the Holocaust artworks.

39

BAZYLER, supra note 15, at 206–07. Id. 41 Dariusz Stola, The Polish Debate on the Holocaust and the Restitution of Property, in ROBBERY AND RESTITUTION: THE CONFLICT OVER JEWISH PROPERTY IN EUROPE 241 (Martin Dean et. al. eds., 2007). 42 DEAN, supra note 17, at 4. 40

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V. APPLYING THE LAW IN AMERICAN COURTS In American courts, the legal standard for recovery is determined by establishing good title to the artwork. The plaintiffs’ attorney in the Schiele case, Howard Spiegler, describes current American law regarding reclaiming stolen art as follows: Underlying any claim for the recovery of Nazi-looted art in the United States is a single, fundamental rule that is at the core of all cultural property cases: no one, not even a good faith purchaser, can obtain good title to stolen property. This simple rule is accepted and applied as a fundamental tenet of property law in the United States.43 Spiegler’s reference to the “fundamental tenet of property law” in American jurisprudence, which holds that no good faith purchaser can obtain good title, has become a defining standard for determining rightful ownership in numerous art theft cases. Therefore, the overriding question that the courts in the United States are confronted with in every case is whether the person currently in possession of the art is the true owner or is authorized by the true owner to deal with the property.44 How this question is answered will ultimately help decide the true ownership of stolen artwork in Holocaust cases. A.

Goodman v. Searle: An Early Attempt To Recover

One of the first court cases brought by the family of Holocaust victims against the current possessor of an artwork was Goodman v. Searle.45 The facts of this 1998 case involved an art dealer, Danny Searle, who had in his possession the painting Landscape with Smokestacks by the French painter Edgar Degas. Searle was an art collector and well-known supporter of major art institutions such as the Institute of Art in Chicago. Searle purchased the Degas painting in 1987 from an art dealer in New York City.46 The provenance of the painting was immediately called into question

43

BAZYLER, supra note 14, at 212. Mari-Claudia Jiménez, Whose Art Is It Anyway?, 1 ART & ADVOCACY 4 (2009). 45 Id. at 5. 46 BAZYLER, supra note 15, at 217. 44

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when Simon Goodman noticed a picture of the painting while in California that he recognized as having belonged to his family prior to the Holocaust.47 The original owner of the painting had been Friedrich Gutmann, a German Jew involved in the banking industry in Holland. He and his family built an extensive art collection of which the Degas painting was one of the more prominent. Gutmann and his family were arrested by the Nazis, transferred their valuable property to the Nazis under a “forced sale,” and were sent to their deaths in a concentration camp. The Gutmann grandchildren, who changed their name to the Anglicized “Goodman,” would eventually pursue justice by using the legal system to reclaim the Degas artwork.48 The Goodman v. Searle case is significant, not because it was resolved in the courtroom, but rather because of how it was settled outside the courtroom through a settlement agreement between the parties. American law as applied to the circumstances of this case centered on the provenance of the artwork and answering the question regarding whether Searle was the true owner of the painting. In summary judgment motions, Searle argued that he was the true owner of the painting and had rightfully purchased the piece. Prior to the purchase, he had consulted with respected art curators who had certified that the Degas painting was of good provenance. Also, he argued that the original owner, Friedrich Gutmann, had sold the painting and that it was never “stolen” by the Nazis. The Goodmans countered that the art curators from the Art Institute in Chicago had missed clear evidence that indicated a flawed provenance, including the fact that it was once in the possession of well-known wartime dealers in stolen art.49 Further, the Goodmans disputed that the painting had been sold willingly and pointed to the fact that no bill of sale existed in a rather well documented exchanged for the painting. An additional argument made by Searle that would be significant for future lawsuits involving stolen Holocaust artworks was that the statute of limitations had expired, thus rendering the Goodmans’ lawsuit “timebarred[.]”50 Searle based his argument on the fact that the Goodmans 47

Id. at 217. Id. at 216. 49 Id. at 218. 50 Id. 48

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“reasonably” could have become aware of the painting years before and could have attempted to recover it before Searle ultimately made the purchase in 1987.51 It was an important defense argument but one that was ultimately rejected by the federal court in Chicago. The Goodmans successfully countered that they and their family had reported the painting as stolen following the Second World War.52 Further, they successfully argued that the more lenient New York statute of limitations should be applied through choice of law rules instead of Illinois’ more stringent rules that would benefit the defendant.53 Eventually the parties were able to reach a settlement that resulted in a joint ownership agreement.54 Though never reaching a final conclusion on the question of ownership, there was enough evidence satisfying the legal elements, and the defendants were forced to settle. This case was a landmark one in the sense that it represents an early attempt by families to recover artwork from a defendant who purchased it in good faith. The case is also establishes that these cases can be resolved through settlement. B. United States v. Portrait of Wally: Establishing the Crime of Theft The case of United States v. Portrait of Wally is a defining case in the area of artwork litigation and recovery efforts relating back to the Holocaust. In this case, starting in 1998, an extended legal process involving state and federal courts unfolded in New York.55 The dispute centered on the provenance and ownership of Egon Schiele’s Portrait of Wally and eventually lasted over a decade. This case represents the joint efforts of both the government and family of the original owner to recover the painting and the case involved a multitude of legal arguments from sovereign immunity to statutory law in the United States.56 Also, this case established the crime of theft through its application of the National Stolen Property Act for stolen Holocaust artwork.

51

Id. Id. at 220. 53 Id. 54 Id. at 220–21. 55 Id. at 226. 56 United States v. Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. 2009). 52

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The underlying issue in Portrait of Wally was the contention that the painting had been stolen by Nazi agents from its original owner, an Austrian Jew Lea Bondi Jaray, from an art gallery in Vienna during the Second World War and remained stolen property over the years.57 The Bondi estate and government asserted that the actions of the Leopold Museum in Austria violated the National Stolen Property Act and was thus subject to civil forfeiture.58 From October 1997 to January 1998, New York’s Museum of Modern Art had on display a collection of artworks on loan from the Leopold Museum in Austria. Friedrich Welz, a well-known Nazi art dealer, had allegedly seized the Schiele’s painting, by forcing Bondi to sell it against her will under “Aryanization” laws as she was trying to leave the country in 1938.59 After the war, Dr. Rudolph Leopold acquired the Schiele painting among others, and Bondi made several attempts dating back to 1953 to reclaim Wally including notifying Leopold of her claims to no avail.60 The estate of Bondi and another family seeking to reclaim an additional piece requested that the Museum of Modern Art return the paintings to the families, which they declined to do. In an attempt to stop the return of the paintings to Austria, the families approached the District Attorney, Robert Morgenthau, who immediately took steps to seize the paintings under civil-forfeiture laws.61 In 1999, the New York Court of Appeals rejected the government’s argument and ruled that the seizure of the painting while a criminal investigation was being conducted was illegal under state law.62 Following this decision by state courts, the case entered into the realm of the federal courts when the U.S. Attorney for New York, Mary Jo White, attempted to confiscate the painting under federal law. It was in federal court that the fate of the painting would eventually be decided. The Leopold Museum’s main argument was that Dr. Leopold was unaware that the painting was stolen and that the Bondi family had never attempted to recover the painting after 1954.63 However, the court records 57

Id. at 236. Id. 59 BAZYLER, supra note 15, at 227. 60 Id. at 229. 61 Portrait of Wally, 663 F. Supp.2d at 246. 62 BAZYLER, supra note 15, at 231-32. 63 Portrait of Wally, 663 F. Supp.2d at 268. 58

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indicate clearly that not only had Bondi met with Leopold face to face, making him aware of her claim to the stolen painting, but other court records and documents had established that Bondi had been deprived of her property by the Nazis through Welz.64 The evidence supported the government’s contention that Leopold should have known the provenance of the painting, and in fact did know that it was stolen but chose to ignore this inconvenient truth. Further, evidence supports the fact that Bondi, up until the time of her death in 1969, and after death her estate, made continued efforts to recover the painting.65 In 2009, the United States District Court for the Southern District of New York rejected summary judgment on behalf of the defendant and found that there was enough evidence to support that the painting had been stolen and that the defendant had been aware of this fact.66 The court stated: Deliberate ignorance and positive knowledge are equally culpable to act knowingly, therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, positive knowledge is not required.67 The emerging dual defense of lacking knowledge of the stolen nature of the artwork and the argument that the statute of limitations had run its course failed in this case. The court simply did not find the defense’s arguments believable and allowed the case to proceed to a jury trial. However, the defendant, prior to trial, decided to settle the case by agreeing to a settlement of 19 million dollars.68 At the conclusion of the case, the court found the possessor museum was not been the “rightful owner” of Schiele’s iconic painting. One of the consequences of United States v. Portrait of Wally was that the federal government was willing to involve itself in the recovery 64

Id. at 244-45. BAZYLER, supra note 15, at 229. 66 Portrait of Wally, 663 F. Supp.2d at 276. 67 Id. at 269. 68 Marcy Oster, Austrian museum pays $19 million for Nazi-looted painting, JEWISH TELEGRAPHIC AGENCY (July 21, 2010), http://www.jta.org/2010/07/22/newsopinion/world/austrian-museum-pays-19-million-for-nazi-looted-painting. 65

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efforts for stolen Holocaust artworks.69 State laws like New York’s may not allow the seizure of suspected stolen property, but the remedy could now be pursued in federal court.70 Another consequence of the case was that it would be much more difficult for museums to claim ignorance when there was compelling evidence that the provenance of artwork was tainted. The government was able to convincingly make the argument that the Leopold Museum was either fully aware that the property was stolen or that they should have been aware of this fact if they had carried out the expected due diligence. C.

Altmann v. Republic of Austria

The case of Altmann v. Republic of Austria is a significant case for the manner in which it was resolved outside the courtroom through mediation.71 As more and more cases involving looting of art treasures came before the judiciary, there has been a growing focus on resolving these cases through alternative means like arbitration. The Altmann case brought the issue of using alternative dispute resolution to the forefront in 2006 with regards to Gustav Klimt’s painting of Adele Bloch-Bauer I. The facts of Altmann v. Republic of Austria center on a dispute over ownership rights between the original owner’s heirs and the Austrian government’s claim to the painting.72 Klimt’s painting was actually a portrait of Adele Bloch-Bauer, the young wife of a wealthy Austrian sugar magnet Ferdinand Bloch.73 Originally, at the time of her death in 1925, Bloch-Bauer intended for her art collection to pass to the Austrian State Gallery following the death of her husband who had survived her.74 She asked that her husband donate the artworks to an important center of Austrian culture and keeper of treasure in Vienna. After the Nazis took over Austria in 1938, her Jewish husband fled to Switzerland, and the Nazis seized his art collection, including the “Portrait of Adele Bloch-Bauer I” by Gustav Klimt.75 Bloch-Bauer’s husband left the art collection to relatives including Maria Altmann. The family of Adele Bloch-Bauer attempted to 69

BANK ET. AL, supra note 33, at 286. Id. 71 BAZYLER, supra note 15, at 248. 72 Altmann v. Republic of Austria, 335 F. Supp.2d 1066, 1067 (C.D. Cal. 2004). 73 BAZYLER, supra note 15, at 240. 74 Id. at 241. 75 Id. 70

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recover artwork that came into the possession of the Austrian government following the Second World War. Based on a new Austrian restitution law enacted in 1998 that was designed to return property taken through coercion during the war and afterwards, Maria Altmann requested the return of the Klimt paintings.76 Maria Altmann, as the survivor heir of the Bloch-Bauer collection, would proceed against the Austrian government in the courts of Austria. This was an unsuccessful venture with the Austrian nation viewing the artworks as its sole possession based on the wishes of Bloch-Bauer upon her death. Altmann did not share the view of the Austrian government but instead saw the paintings as stolen property acquired by the Nazis and recovered by the Austrian government following the war but rightfully belonging to her per the wishes of the late Ferdinand Bloch.77 The Austrian government’s legal position was that the Bloch-Bauer collection had been in the rightful possession of the Austrian State Gallery based on the original wishes of Adele Bloch-Bauer.78 The will signed at the time of her death created a binding legal obligation that conveyed ownership to the State Gallery and which made Ferdinand Bloch’s later actions null and void.79 According to this position, Maria Altmann was not the true owner, and once the paintings were recovered, the rightful owner, namely Austria, was entitled to legal possession.80 Altmann and her legal team made a compelling argument that the Austrian government was basing its legal position on the misinterpretation of the facts. Bloch-Bauer never actually legally conveyed the paintings because they were not her property at the time of death.81 In actuality, the art collection was never BlochBauer’s to convey but was at all times the property of her husband Ferdinand and his alone to convey.82 According to this legal theory, the later conveyance of the art collection to Altmann by Ferdinand Bloch upon his death transferred legal title and rightful ownership to her, not to the State Gallery of Austria.

76

Id. at 244. Altman v. Republic of Austria, 335 F. Supp. 2d 1066, 1067 (C.D. Cal. 2004). 78 Republic of Austria v. Altmann, 541 U.S. 677, 680, 684 (2006). 79 Id. 80 Id. 81 Id. at 682. 82 Id. 77

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The Austrian government lost its appeal in Republic of Austria v. Altmann to have the lawsuit dismissed on grounds of sovereign immunity. Based on the Court’s ruling, each of the parties submitted to binding arbitration in Austria which held in favor of Altmann and granted her sole possession of the paintings.83 The Austrian arbitration panel believed that the Altmann legal theory was more credible in that Bloch-Bauer’s original wishes were merely a suggestion, and not a legally binding transfer of property.84 Even though the lawsuit was settled through alternative dispute resolution, the facts indicated that the party in possession of the paintings in 1998, the Austrian government, was not the true owner or acting on behalf of the true owner. Once again, American courts, and for the first time European arbitration panels, returned artworks to the victims’ families based on a provenance that was subject to suspicions of theft. A pattern emerging in all of these cases supports the contention that if one can argue convincingly that the facts support that the painting was stolen and that the current possessor does not have clear title, then the chances are strong that American courts will favor the survivor’s family. However, in the same manner, when the current possessor can show convincing facts that support proper title and rightful ownership, the defendant can also find success in the courtroom. D.

Orkin v. Taylor: A Movie Star and Her Art

One of the more colorful examples in the Holocaust artwork is the case involving Elizabeth Taylor and the legal status of a Vincent Van Gogh painting in her possession. In Orkin v. Taylor, a court of appeals upheld the lower court’s ruling that the cause of action by a Jewish victim’s family was time-barred. This 2007 case is unique because it illustrates one of the legal obstacles that can arise when a family tries to recover lost painting many years after the fact. In addition, the case is significant because it provides a legal basis for the current possessor to defend their rightful ownership of particular artwork. 83

Isabel Wilkinson, Remembering Maria Altmann, Holocaust Hero Who Won Back Klimt Paintings, THE DAILY BEAST (Feb. 11, 2011, 3:11 PM), http://www.thedailybeast.com/ articles/2011/02/08/remembering-maria-altmann-holocaust-hero-who-won-back-klimtpaintings.html?via=desktop. 84 Id.

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The Orkin family alleged in their lawsuit that a relative, Margarete Mauthner had purchased a Van Gogh painting in 1906 or 1907, which was later sold under coercion when Mauthner fled Nazi Germany in 1939.85 The painting, which portrayed a church or abbey in autumn, was later acquired by a private art dealer Alfred Wolf at some point after the Second World War.86 In April of 1963, the famous Hollywood actress Elizabeth Taylor purchased the Van Gogh in question at a Sotheby’s auction.87 Many years later, the Orkin family alleges that they first learned of Taylor’s ownership of the Van Gogh in 2002 and initiated legal action to recover the painting.88 The legal issues that were contested in Orkin v. Taylor involved the plaintiffs’ claims that Margarete Mauthner was deprived of her painting under economic “duress” and that, because the painting was stolen, Elizabeth Taylor could not have had good title to this stolen property.89 The provenance of paintings “sold” by Jewish owners fleeing Europe in the prewar years are generally held in suspicion due to the measures taken by the Nazi state to acquire valuable artworks.90 A further issue raised by the defense was that the Orkin family’s legal claims were time barred and untimely. In addition, Taylor claimed that there was no evidence of theft by the Nazis or economic coercion but instead argued that the evidence supported a sale between two Jewish art collectors.91 The district court found for the defendant in a 12(b) motion and held that the plaintiff had not raised a legally sufficient claim.92 The plaintiffs appealed. The key issue in the plaintiffs’ appeal centered on whether the Holocaust Victim’s Redress Act created a private cause of action for the plaintiffs.93 Also, the appellate court decided the question of whether the plaintiffs’ claims were time-barred by California state law. Ultimately, the court of appeals held that the federal law enacted by Congress did not create a private cause of action, and the statutory intent of the legislature did not 85

Orkin v. Taylor, 487 F. 3d 734, 736-37. Id. 87 Id. 88 Id. at 738. 89 Id. at 737–38. 90 Id. 91 Id. at 736, 737–38. 92 Id. at 738. 93 Id. at 736. See also Derek Fincham, Orkin v. Taylor, ILLICIT CULTURAL PROPERTY (May 21, 2007), http://illicit-cultural-property.blogspot.com/2007/05/orkin-v-taylor.html. 86

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support the plaintiffs’ claim.94 They reasoned that the plain meaning of the law showed that its focus was on “governments,” and not private “individuals,” as was the Orkin family in this case.95 The appellate court found that California’s three-year statute of limitations applied in this case, thus time barring the plaintiffs’ legal claim.96 California’s state law allows an action for recovery of artwork to accrue when the true owner discovers the location of the missing artwork.97 In the present case, the court noted that the Orkin family had several opportunities prior to 2002 where they could have reasonably discovered the artwork through investigation and have raised the legal claim.98 These opportunities included a publically available source in 1970, listing Taylor as the owner of the painting, and later in 1990, when Taylor listed the artwork for sale.99 The appellate court held that either one of these two public available sources, if investigated by the plaintiff, would have led to the discovery of the disputed Van Gogh.100 Therefore, the district court’s ruling was upheld and the plaintiffs’ claim dismissed as time barred and untimely. The distinguishing issue in Orkin v. Taylor was the fact that the plaintiffs had never attempted to recover the artwork prior to 2002, even when there had been several public displays of ownership by Elizabeth Taylor. Whether the artwork was ever stolen or not was not determined by the Court, but most commentators believe that there was little evidence that a theft occurred.101 Unlike previous case studies, such as Altmann v. Republic of Austria, where the plaintiff could demonstrate attempts at recovery which satisfied the statute of limitations, such efforts were absent from the present case. The appellate court’s ruling helped establish precedent for defendants to raise state law statute of limitations defenses when it could be clearly demonstrated that no efforts were made to recover the stolen artwork.

94

Taylor, 487 F.3d at 740. Id. 96 Id. at 741 (citing CAL. CIV. PROC. CODE § 338(c)). 97 Id. 98 Id. at 742. 99 Id. 100 Id. at 742. 101 Fincham, supra note 93. 95

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E.

American Versus European Law

The focus in these case examples is to examine how American courts have addressed claims for recovery of stolen Holocaust artworks. However, there are differences in how the American legal system and European courts have addressed these legal claims. These differences in legal systems can be an important factor for families in deciding how to proceed with their attempts to recover art. The European countries base their legal principles on a civil code that generally does not favor the original owner of lost property.102 The civil law legal systems that exist throughout most of Europe differ significantly from the common law legal system that dominates the United States and Great Britain.103 In civil-law countries such as Germany and Italy, the rights of the original owner against a good faith purchaser of stolen property do not receive the same protections that are afforded in American courts.104 German courts will generally allow good title to pass within a specific statutory period of time up to ten years, while Italian courts will often allow a good faith purchaser to receive immediate good title to stolen property.105 Switzerland provides one of the best examples where a good faith purchaser can obtain clear title after five years. For civil law countries, generally all that must be shown is that the purchaser took possession in good faith.106 The current owner of stolen artwork can successfully defend their possessory rights to the property if they can prove that they were unaware of the theft at the time of sale. American courts, based on common law, hold to different principles enshrining the rights of the original owner of stolen property even against a good faith purchaser.107 This legal principle has been consistently upheld. For cases such as Altmann v. Austria, the fact that the American legal system favors the original owner gives families of Holocaust victims seeking to recover stolen artworks a significant advantage. Applying the legal standard existing in civil law nations, under the same set of facts, any of the plaintiffs 102

Jimenez, supra note 44. Id. 104 BAZYLER, supra note 15, at 212. 105 Jimenez, supra note 44. 106 Id. 107 Donald S. Burris & E. Randol Schoenberg, Reflections on Litigating Stolen Art Cases, 38 VAND. J. TRANSNAT’L L. 1041, 1043 (2005). 103

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who were successful in American courts pursuing their claims probably would not have met the same success in most European countries. VI. CONCLUSION A survey of American case law reveals certain critical elements that must exist and facts that must be proven for a person or entity to recover stolen artwork. Holocaust recovery cases under property law have created a modern precedent and can be applied to other, similar legal claims for artwork. For plaintiffs, it is possible to predict the outcome of lawsuits and legal proceedings to recover property allegedly acquired through theft. Also, a defendant in cases for artwork recovery can predict a successful defense. Under the facts, plaintiffs must be able to prove that either they, or a party whose interests they represent, had clear title to a painting, artifact, or treasure. Plaintiffs must show that the artwork was either stolen, wrongly acquired through some form of coercion, or that a theft was committed that deprived the true, original owner of the property in question. Also, the original owners must demonstrate that they made timely efforts to recover the stolen property within the statute of limitations that applies to the particular case. If all the above factors are satisfied under the facts, than there is a strong case that the plaintiffs could be successful in pursuing their cause of action. Reflecting on the original question of whether the government of Egypt has a legal claim to recovery of Cleopatra’s Needle, it is possible to apply current legal principles and predict an outcome. For a legal claim to succeed in this case, first it must be proven that the current government of Egyptian was the original rightful owner, or is acting in the interest of the original rightful owner of Cleopatra’s Needle through the provenance of the treasure. Second, it must be proven that Cleopatra’s Needle was acquired through a theft, “economic coercion,” or wrongful taking. Third, the Egyptian government must demonstrate that they made prior, reasonable efforts to investigate public displays of ownership by the current possessor, New York City. Regardless of whether New York City was a good faith purchaser, if all of the above elements can be proven in a court of law, then

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it is possible that artifacts such as Cleopatra’s Needle would have to be returned to Egypt.108 All of this may be difficult to prove, but it provides the Egyptian government with a framework to prove their claim in American courts if they so wish. Any claimant to stolen artwork ranging from the families of Holocaust survivors to governments seeking recovery of priceless national treasures can have their day in court and make a reasonable prediction of the outcome under current law.

108

Id. at 1042.

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THE POWER OF RELIGION IN A SECULAR SOCIETY By John O. Hayward THE POWER OF RELIGION IN A SECULAR SOCIETY By John O. Hayward* Law helps to give society the structure, the gestalt, it needs to maintain inner cohesion; law fights against anarchy. Religion helps to give society the faith it needs to face the future; religion fights against decadence. - Harold J. Berman1 I. INTRODUCTION To paraphrase novelist D.H. Lawrence’s opening in Lady Chatterley’s Lover, ours is essentially a secular age, but many refuse to acknowledge it. Our religious wars have ended, and now we wander about in a bewildering secular world. 2 Even though many would deny the power *

M.P.A., Harvard Univ., J.D. & A.B., Boston Univ.; Adjunct Senior Lecturer, Bentley Univ., Waltham, Massachusetts.The author can be reached at jhayward@bentley.edu. 1 HAROLD J. BERMAN, THE INTERACTION OF LAW & RELIGION, 24 (Abington Press, 1974). [Harold Berman served as Professor of Law at Harvard Law School from 1948–85 and at Emory University School of Law for more than 20 years. Many scholars regard him as the father of law and religion. See http://cslr.law.emory.edu/people/inmemoriam/berman.html (last visited May 6, 2015).] On the relationship of law and religion, see generally, STEPHEN L. CARTER, THE DISSENT OF THE GOVERNED, A MEDIATION ON LAW, RELIGION & LOYALTY (1995); and MARCI A. HAMILTON, GOD V. THE GAVEL, RELIGION & THE RULE OF LAW (2005). On the topic of religion in our contemporary world, see THE POWER OF RELIGION IN THE SECULAR SPHERE (Eduardo Mendieta & Jonathan VanAntwerpen eds., 2011). 2 D.H. LAWRENCE, LADY CHATTERLEY’S LOVER (Signet Books, 1959). Originally published in 1928, Lawrence began his controversial novel with the statement “Ours is essentially a tragic age, so we refuse to take it tragically. The cataclysm has happened, we are among the ruins . . . .” Id. at 5. “Secularism” derives from the Latin word saeculum, referring to time. The “temporal” is contrasted with the “eternal” and by implication, the worldly with the religious. See THE DICTIONARY OF BIBLE & RELIGION 949 (William H. Gentz ed., 1986); For contemporary works proclaiming ours a secular age, see generally CHARLES TAYLOR, A SECULAR AGE (2007); VARIETIES OF SECULARISM IN A SECULAR AGE (MICHAEL WARNER et. al. eds., 2013); JAMES CARROLL, CHRIST ACTUALLY: THE SON OF GOD FOR THE SECULAR AGE (2014); For a conservative critique of what Berman

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and influence of religion in this day and age and opine for freedom from religion, this article seeks to persuade the reader that law and religion are interdependent and that religion is an important element in our secular society. An excellent example is the U.S. Supreme Court’s decision in the Hobby Lobby case, where in a 5–4 decision, the Justices held that as applied to closely held corporations, the Department of Health & Human Services (HHS) regulations imposing the contraceptive mandate violated the Religious Freedom Restoration Act (RFRA).3 Through an exploration of the religious dimensions of law and the legal dimensions of religion as well as an analysis of selected U. S. Supreme Court cases in the areas of criminal law,4 unemployment compensation,5 conscientious objector status,6

terms the “secular religion” of contemporary liberal democracy (BERMAN, Id. at 69); ROBERT P. GEORGE, THE CLASH OF ORTHODOXIES, LAW, RELIGION, & MORALITY IN CRISIS (2001). 3 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), infra, Section III F. A Congressional attempt to reverse the Court’s ruling failed. See Kristina Peterson, Senate Bill to Nullify Hobby Lobby Decision Fails, WALL STREET J., July 17, 2014, p. A4. For an argument that employers should be legally required to pay for all types of contraception irrespective of their religious convictions, see Alan Garfield, Making the Case for Contraception Over Religious Views, THE NEWS J., Mar. 24, 2014, p. A09. The decision has engendered much criticism. See Corey A. Ciocchetti, Religious Freedom and Closely Held Corporations: The Hobby Lobby Case and Its Ethical Implications, 93 OR. L. REV. 259 (2014); Gregory P. Magarian, Hobby Lobby in Constitutional Waters: Two Life Rings and an Anchor, 67 VAND. L. REV. EN BANC 67 (2014); Paul Horwitz, The Supreme Court 2013 Term—Comment: The Hobby Lobby Moment, 128 HARV. L. REV. 154 (2014); Kathryn E. Kovacs, Hobby Lobby and the Zero-Sum Game, 92 WASH. U.L. REV. 255 (2014); Maria Iliadis, Comment, An Easy Pill to Swallow: While the Supreme Court Found That For-Profit, Secular Companies Can Exercise Religion Within the Meaning of the Religious Freedom Restoration Act, The Mandate Should Have Prevailed With Respect to Those Entities Because it Advances the Government’s Compelling Interests in Public Health and is the Least Restrictive Means of Doing So, 44 U. BALT. L. REV. 341 (2015); Jennifer Jorczak, Note, “Not Like You and Me”: Hobby Lobby, The Fourteenth Amendment, and What the Further Expansion of Corporate Personhood Means for Individual Rights, 80 BROOKLYN L. REV. 285 (2014); Symposium, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 HARV. J. L. & GENDER 35 (2015); William P. Marshall, Bad Statutes Make Bad Law: Burwell v. Hobby Lobby, 2014 SUP. CT. REV. 71. 4 United States v. Ballard, 322 U.S. 78 (1944), infra Section III A. 5 Sherbert v. Verner, 374 U.S. 398 (1963); Frazee v. Ill. Dept of Emp’t Sec., 489 U.S. 829 (1989), infra Section III B. 6 United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970), infra Section III C.

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education,7 and the contraceptive mandate,8 this article seeks to demonstrate how religious beliefs have influenced judicial decisions that have had a vast impact on contemporary American life. We will also review an instance where the High Court restricted the influence of religion9 and one where the Justices stepped in to protect a religious belief and practice many found repulsive and offensive.10 These cases have been and continue to be controversial, but in this writer’s opinion, they were correctly decided because a society without religious moorings is a society without meaning or purpose. II. INTERACTION OF LAW AND RELIGION In 1971, the Lowell Lectures on Theology delivered at Boston University sought to explain how law and religion in Western societies are interdependent.11 The presenter spoke of “law and religion in the broadest sense—of law as the structures and processes of allocation of rights and duties in a society and of religion as society’s intuitions of and commitments to the ultimate meaning and purpose of life.”12 Before we examine his presentation, a few comments on the nature of religious belief in general are in order. While definitions of religion vary,13 it is recognized that a common thread uniting all belief systems that can be termed “religious” is that they 7

Wisconsin v. Yoder, 406 U.S. 205 (1972), infra Section III D. Hobby Lobby, 134 S. Ct. 2751 (2014). 9 Emp’t Div. v. Smith, 494 U.S. 872 (1990), infra Section III E. 10 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), infra Section III G. 11 BERMAN, supra note 1, at 7, 46. 12 Id. at 12. The U.S. Supreme Court has held that belief in the existence of God or a Supernatural Being is not a requirement for a religion. See Torcaso v. Watkins, 367 U.S. 488 (1961). For a recent discussion of the Court’s adjudication of Establishment Clause cases in the context of different religious perspectives, including religious majorities, minorities, and nonbelievers, see Samuel J. Levine, A Look at the Establishment Clause Through the Prism of Religious Perspectives: Religious Majorities, Religious Minorities, and Nonbelievers, 87 CHI.-KENT L. REV. 775 (2012). 13 The term “religion” derives from the Latin “religare” (“to bind fast”), and typically refers to “an institution with a recognized body of communicants who gather together regularly for worship, and accept a set of doctrines offering some means of relating the individual to what is taken to be the ultimate nature of reality.” W. L. REESE, DICTIONARY OF PHILOSOPHY AND RELIGION 488 (1980). Certainly there is no dearth of definitions of “religion” in the theological and legal literature. See e.g., Dmitry N. 8

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Feofanov, Defining Religion: An Immodest Proposal, 23 HOFSTRA L. REV. 309 (1994); Richard O. Frame, Note, Belief in a Nonmaterial Reality—A Proposed First Amendment Definition of Religion, 1992 U. ILL. L. REV. 819; Michael Rhea, Comment, Denying and Defining Religion Under the First Amendment: Waldorf Education as a Lens for Advocating a Broad Definitional Approach, 72 LA. L. REV. 1095 (2012); Jeffrey L. Oldham, Note, Constitutional “Religion” A Survey of First Amendment Definitions of Religion, 6 TEX. F. ON C.L. & C.R. 117 (2001); Jeffery Omar Usman, Defining Religion: The Struggle to Define Religion Under the First Amendment and the Contributions and Insights of Other Disciplines of Study Including Theology, Psychology, Sociology, the Arts, and Anthropology, 83 N. D. L. REV. 123 (2007); Daniel A. Seeger, Reconciling Religious Faith and Democratic Practice: The Problem of the Elusive Definition of Religion, 84 N. D. L. REV. 97 (2008); Steven D. Collier, Comment, Beyond Seeger/Welsh: Redefining Religion Under the Constitution, 31 EMORY L.J. 973 (1982); James M. Donovan, God is as God Does: Law, Anthropology, and the Definition of “Religion”, 6 SETON HALL CONST. L.J. 25 (1995); Barbra Barnett, Twentieth Century Approaches to Defining Religion: Clifford Geertz and the First Amendment, 7 U. MD. L.J. RACE, RELIGION, GENDER, & CLASS 93 (2007); Lee J. Strang, The Meaning of “Religion” in the First Amendment, 40 DUQ. L. REV. 181 (2002); Symposium, The Supreme Court’s Hands-Off Approach to Religious Doctrine: Does It Matter What Religion Is? 84 NOTRE DAME L. REV. 807 (2009). An exhaustive list is provided by Val D. Ricks, To God God’s, To Caesar Caesar’s, and to Both the Defining of Religion, 26 Creighton L. Rev. 1053 (1993), fn. 1, to wit: Milton R. Konvitz, Religious Liberty & Conscience 51–71 (1968); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 146, at 1179 (2d ed. 1988); Arlin M. Adams & Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. PA. L. REV. 1559 (1989); Anita Bowser, Delimiting Religion in the Constitution: A Classification Problem, 11 VAL. U. L. REV. 163 (1977); A. Stephen Boyan, Jr., Defining Religion in Operational and Institutional Terms, 116 U. PA. L. REV. 479 (1968); Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. PITT. L. REV. 673 (1980); Jesse H. Choper, Defining “Religion” in the First Amendment, 1982 U. ILL. L. REV. 579 (1982); J. Morris Clark, Guidelines for the Free Exercise Clause, 83 HARV. L. REV. 327 (1969); Francis J. Conklin, Conscientious Objector Provisions: A View in the Light of Torcaso v. Watkins, 51 GEO. L.J. 252 (1963); George C. Freeman, III, The Misguided Search for the Constitutional Definition of “Religion,” 71 GEO. L.J. 1519 (1983); Mark Galanter, Religious Freedoms in the United States: A Turning Point, 1966 WIS. L. REV. 217 (1966); Frederick M. Gedicks, Toward a Constitutional Jurisprudence of Religious Group Rights, 1989 WIS. L. REV. 99 (1989); Steven G. Gey, Why is Religion Special? Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75 (1990); Symposium, Religion as a Concept in Constitutional Law, 72 CAL. L. REV. 753 (1984); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233 (1989); Alfred G. Killilea, Standards for Expanding Freedom of Conscience, 34 U. PITT. L. REV. 531 (1973); Philip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3 (1979); Philip B. Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1 (1961); R. Collin Mangrum, Naming Religion (and Eligible Cognates) in Tax Exemption Cases, 19 CREIGHTON L. REV. 821 (1986); William P.

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are in some way connected with “the eternal,” whether that is understood as an eternal Being outside man—God, or as the eternity of man’s own being—immortality.14 Again, it is possible for a religion to be strictly godless, as in the case of early Buddhism, which recognizes neither God nor Absolute, yet is nonetheless a religion and is acknowledged as such.15 In all religions there are, in different proportions, three main ingredients: faith, a desire to ‘belong’, and a desire for ‘escape’.16 Faith – This means either belief in the ‘mission’ of a certain individual or group—prophet, incarnate god or church—or assent to a particular interpretation of existence, which enjoys the authority of antiquity or of human sages of proved experience. Faith in a personal god expresses itself in practical worship. Faith in a given interpretation of existence finds Marshall, “We Know It When We See It” The Supreme Court Establishment, 59 S. CAL. L. REV. 495 (1986); Deborah L. McHenry, A Discussion of the Movement to Desecularize Public Education, 90 W. VA. L. REV. 171 (1987); Gail Merel, The Protection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U. CHI. L. REV. 805 (1978); Mary Harter Mitchell, Secularism in Public Education: The Constitutional Issues, 67 B.U. L. REV. 603 (1987); Dallin H. Oaks, Separation, Accommodation and the Future of Church and State, 35 DEPAUL L. REV. 1 (1986); Jonathan Weiss, Privilege, Posture and Protection: “Religion” in the Law, 73 YALE L.J. 593 (1964); Charles M. Whelan, “Church” in the Internal Revenue Code: The Definitional Problems, 45 FORDHAM L. REV. 885 (1977); Sharon L. Worthing, “Religion” and “Religious Institutions” Under the First Amendment, 7 PEPP. L. REV. 313 (1980); Ben Clements, Comment, Defining “Religion” in the First Amendment: A Functional Approach, 74 CORNELL L. REV. 532 (1989); Comment, Defining Religion: Of God, the Constitution, and the D.A.R., 32 U. CHI. L. REV. 533 (1965); Timothy L. Hall, Note, The Sacred and the Profane: A First Amendment Definition of Religion, 61 TEX. L. REV. 139 (1983); Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 YALE L.J. 350 (1980); Craig A. Mason, Note, “Secular Humanism” and the Definition of Religion: Extending a Modified “Ultimate Concern” Test to Mozert v. Hawkins County Public Schools and Smith v. Board of School Commissioners, 63 WASH. L. REV. 445 (1988); Note, Toward a Constitutional Definition of Religion, 91 HARV. L. REV. 1056 (1978). 14 ENCYCLOPEDIA OF THE WORLD’S RELIGIONS 393 (R.C. Zaehner ed., 1997). 15 Id. 16 Id. A “religious experience” is usually regarded as “personal, involving a relationship to the Divine Other, or God. [It] usually includes the whole person, but uppermost is an awareness of the emotions and senses: sight, sound, touch, smell, and taste.” THE DICTIONARY OF BIBLE AND RELIGION 881 (William H. Gentz ed., 1986). For a study of mankind’s early religious experience, see EMILE DURKHEIM, THE ELEMENTARY FORMS OF THE RELIGIONS LIFE (1915). On the related topic of what is a church, see Mason Powell, Note, Ecclesia Semper Reformanda Est: Radical Reformation and the IRS, 101 KY. L. J. 207 (2013).

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its practical application in the schooling of the mind and body in an effort to realize the spiritual state that this interpretation of existence claims is man’s spiritual goal.17 Desire to ‘belong’ – While this is not a specifically religious phenomenon, it is present, to a greater or lesser degree, in all religions and can manifest itself in many ways. At its simplest it is the desire to be incorporated into a spiritual society and to become integrated within it, as a part of the body is in the body itself. Alternatively, as in nature mysticism, it may express itself as a merging in the ‘all’. In its extreme form, this merging in the ‘all’ is transcended, and the individual, by the act of casting off individuality, becomes, or believes he becomes, identical with the ‘all’.18 Desire to ‘escape’ – While present in all religions, it is on the matter of that from which escape is sought that religions so profoundly disagree. The Christian seeks release from the bondage of sin; the Buddhist seeks release from human existence as such. Islam, on the other hand, accepts this world as God’s creation and field of operation, but nevertheless has been unable wholly to resist the pressure of its own mystics who turned their backs on this world entirely.19 One commentator, writing mainly of the Abrahamic traditions of the West, but with perceptive comparisons to Buddhism, explains religion in terms of belief in an agency or power that transcends the immanent order— by which he means the operations of the natural world.20 For this observer, religion relates to “the beyond,” to an otherworldly order of things, but not in just any way. He posits three specific dimensions: First, religion asserts that there is some higher good or ultimate end beyond ordinary human flourishing. Second, it includes the possibility of personal transformation, to ensure that the higher good is achieved. This, in turn, involves the existence of a transformative and transcendent power. Third,

17

ZAEHNER, supra note 14. Id. 19 Id. at 393–94. 20 See TAYLOR, supra note 2, at 15, cited in RUSSELL BLACKFORD, FREEDOM OF RELIGION AND THE SECULAR STATE 6 (2012). 18

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the religious account of our possible transformation involves a sense of human life extending beyond “this life.”21 A. Religious Dimensions of Law The Lowell presenter cautioned against viewing law and religion in purely dictionary terms, remarking that law is more than a body of rules laid down by legislators and religion more than a system of beliefs relating to the supernatural.22 He declared that: Law is not only a body of rules; it is people legislating, adjudicating, administering, negotiating—it is a living process of allocating rights and duties and thereby resolving conflicts and creating channels of cooperation. Religion is not only a set of doctrines and exercises; it is people manifesting a collective concern for the ultimate meaning and purpose of life—it is a shared intuition of and commitment to transcendent values. [emphasis in original]23 Remarking that in some societies (ancient Israel, for example) the law, the Torah, is the religion,24 he pointed out that even in societies that make a sharp distinction between law and religion (the U.S., for example), the two need each other. Law to give religion its social dimension and religion to give law its spirit and direction as well as the sanctity it needs to command respect.25 Where the two are separate, the law tends to degenerate into legalism and religion into religiosity.26 They share four elements: ritual, tradition, authority and universality.27 These elements symbolize man’s effort to reach out to a truth beyond himself, thus connecting the legal order of a society to its beliefs in an ultimate, transcendent reality, while at the same time giving sanctity to legal values and reinforcing people’s legal emotions.28 These “emotions” include: 21

BLACKFORD, supra note 20, (citing TAYLOR, supra note 2, at 15–20.) BERMAN, supra note 1, at 23–24. 23 Id. at 24. 24 Id. In many Islamic societies, the opposite is true, i.e., religion is the law. Saudi Arabia and Qatar come immediately to mind. 25 Id at 25. 26 Id. 27 Id., citing HUSTON SMITH, THE RELIGIONS OF MAN 90–92 (1958), and substituting “universality” for Smith’s “concept of God’s sovereignty and grace.” Id. at 145–46. 28 Id. at 25. 22

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[T]he sense of rights and duties, the claim to an impartial hearing, the aversion to inconsistency in the application of rules, the desire for equality of treatment, the very feeling of fidelity to law and its correlative, the abhorrence of illegality.29 Calling into question the prevailing social science view of law as “secular-rational” and that judicial decisions are never “final” but depend on circumstance (are not divine or True), he mentioned that even advocates of this point of view admit that it can eventually lead to less respect for law and a greater willingness to become a lawbreaker.30 After all, obedience to law cannot come from fear of punishment alone, but must be rooted in the belief that law is fair and just.31 Law should not be viewed as simply a body of rules, but rather understood as “an active, living human process, then it will involve—as religion involves—man’s whole being, including his dreams, his passions, his ultimate concerns.”32 He elaborated on the elements that law shares with religion: Ritual – ceremonial procedures that symbolize the objectivity of law; Tradition – language and practices handed down from the past that symbolize the continuity of law; Authority – reliance upon written or spoken sources of law that are considered to be decisive in themselves and that symbolize the binding power of law; Universality – the claim to embody universally valid concepts or insights that symbolize the law’s connection with an all-embracing truth.33 These elements are present in all legal systems, just as they are in all religions. They furnish the context in which every society’s legal rules are enunciated and from which they derive their legitimacy.34 29

Id. Id. at 28. 31 Id. Cf. TOM R. TYLER, WHY PEOPLE OBEY THE LAW (2006). 32 BERMAN, supra note 1, at 31. 33 Id. 34 Id. 30

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Finally, he asked us to remember the contributions to Western jurisprudence made by the Christian church.35 These are the principles of: 

Civil disobedience

Law reform in the direction of greater humanity

Coexistence of diverse legal systems

Conformity of law to a system of morals

Sanctity of property and contract rights based on intent

Freedom of conscience

Legal limitations of the power of rulers

Responsibility of the legislature to public opinion

Predictability of the legal consequences of social and economic actions

Priority of state interests and public welfare

While many are regarded today as “self-evident truths,” they are in fact “historical achievements created mainly out of the experience of the Christian church in the various ages if its life.”36 These “successive ages” have created “the psychological basis, and many of the values, upon which the legal systems of democracy and socialism rest.”37

35

Id, at 72. Id. These “ages” are “the underground church of the first centuries, the theocratic statechurch of Byzantium and the early Middle Ages in the West, the independent transnational visible corporate church of the later Middle Ages, the invisible Lutheran church within the nation, the congregational church of Calvinism, and increasingly today the church of the private individual.” Id. at 72–73. 37 Id. at 73. 36

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B.

Legal Dimensions of Religion

Just as law has religious dimensions, so too does religion have legal dimensions. The Lowell presenter remarked that law is not only a matter of social utility, but is also “fundamentally a part of the ultimate meaning and purpose of life, a matter involving man’s whole being, including not only his reason and will but also his emotions and faith.38 While law and religion are two different dimensions of human experience, each is a dimension of the other. They stand or fall together.39 In every religion there is and must be a legal element—indeed two legal elements: one relating to the social processes of the community sharing the particular religious faith, the other relating to the social processes of the larger community of which the religious community is a part.40 When the presenter referred to “law” in this context, he had in mind not only the broad moral principles of the Ten Commandments, but also the secular law of, impartial adjudication of disputes, judicial review of the constitutionality of governmental acts, the rule that a person who negligently injures another should compensate for the harm that is caused, the presumption of innocence, the right of a person arrested by the police to have a judicial determination of the lawfulness of his detention, the interpretation of contracts according to the intent of the parties, the principle of equal protection regardless of race or creed, the concept of good faith—and a host of other legal institutions, practices, rights, rules, concepts and values.41 He asserted that every one of these practices and rights has its source in the moral order of the universe as that moral order has been culturally and historically experienced.42 Furthermore, as regards the American legal

38

Id. at 77. Id. at 78. Berman recognizes that in some societies, like those of ancient Israel and Islam, law and religion are identified with each other. Id. 40 Id. at 79–80. 41 Id. at 94–95. 42 Id. at 95. 39

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tradition, he declares that every one of these principles is biblical in justification if not in origin.43 Let us now turn to U.S. Supreme Court decisions where the power of religion trumped federal and state law. We will also examine a pivotal case where religious belief and practice had to give way to a compelling state interest.44 III. RELIGION CONFRONTS THE LAW A.

Ballard – Criminal Prosecution for Misrepresentation of Religious Belief or Experience

In United States v. Ballard,45 the Supreme Court, in a 5–4 decision, reversed and remanded the conviction of two leaders of a religious movement known as “I AM” for fraudulently seeking and collecting donations on the basis of religious claims that the defendants themselves did not believe. Disagreeing with the Court of Appeals, the High Court held that the question of whether the defendants’ claims about their religious experiences were actually true should not have been submitted to a jury.46 Defendants Guy Ballard and Edna Ballard were indicted and convicted for using, and conspiring to use, the mails to defraud. The indictment charged a scheme to defraud by organizing and promoting the “I AM” movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the “I AM” movement sought “by means of false and fraudulent representations, pretenses and promises.” Eighteen false representations were charged that included their alleged religious doctrines or beliefs which were set forth in the first count.47 Among the representations the defendants were alleged to have made was the following:

43

Id. Emp’t Div. v. Smith, 494 U.S. 872 (1990), infra Section III E. 45 322 U.S. 78 (1944). Some case commentaries originally appeared in John O. Hayward, The Free Exercise Clause: Fealty to God or Ceasar?, 53 J.CATH. LEGAL STUD. 211 (2014). 46 United States v. Ballard, 322 U.S. 78, 86 (1944). 47 Id. at 79. 44

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that [the defendants] . . . had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases, and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments;48 After each representation, the indictment alleged that the defendants “well knew” the representations were false. The trial judge instructed the jury that they were not to be concerned with the truth or falsity of the representations but rather the “good faith” of the defendants in asserting them.49 The jury convicted them but the Circuit Court of Appeals reversed, holding that limiting the jury to deciding only their “good faith” was error. Rather the jury should have been able to decide the truth or falsity of their claims.50 The Supreme Court reversed the Court of Appeals and remanded the case to the trial court.51 Justice Douglas, writing for the Court, held that the truth or veracity of defendants’ religious doctrines or beliefs should not have been submitted to the jury because the First Amendment precludes such an action.52 Quoting Watson v. Jones, he writes: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”53 He declares that the First Amendment has two aspects. It not only “forestalls compulsion by law of the acceptance of any creed or the practice of any

48

Id. at 80. Id. at 80–82. 50 Id. at 83. 51 Id. at 88. 52 Id. at 86. The trial judge had ruled that the court could not inquire whether defendants’ statements were true, but could inquire whether they believed them to be untrue, and if so, then they could be convicted. Id. at 92 (Jackson, J., dissenting). 53 Id. at 86 (citing Watson v. Jones, 13 Wall. 679, 80 U.S. 728 (1871)). 49

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form of worship,” but also “safeguards the free exercise of the chosen form of religion.”54 He announces that freedom of thought: [E]mbraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.55 Continuing, he remarks: Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.56 Reinforcing the constitutional principle of the separation of church and state, he declares, “Man’s relation to his God was made no concern of the state.”57 Commenting on the diversity of mankind’s religious views, he warns that the state must not become the arbiter of religious truth: The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First 54

Id. (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)). Id. 56 Id. at 87. 57 Id. 55

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Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.58 Consequently, the Court held a jury cannot evaluate the truth or falsity of religious claims. Believing that the indictment should be dismissed, Justice Jackson dissented.59 Warning that judicial inquiry into the truth of people’s religious beliefs “easily could degenerate into religious persecution,”60 he writes that he would “dismiss the indictment and have done with this business of judicially examining other people’s faiths.”61 He remarks that he could “see in the [I AM movement] teachings nothing but humbug, untainted by any trace of truth,” but that did “not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.”62 He notes that while the trial judge withheld from the jury the truth or falsity of defendants’ claims, he did allow the jury to determine if they knew them to be untrue, and if they did, they could be convicted.63 He found this result difficult to reconcile with “our traditional religious freedoms” and expressed deep concern about any judicial inquiry into the sincerity of people’s religious experiences.64 He remarks: If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelieves[sic] among his judges are 58

Id. (citing Murdock v. Pennsylvania, 319 U.S. 105 (1943)). See id. at 92 (Jackson, J., dissenting). 60 Id. at 95. 61 Id. 62 Id. at 92. 63 Id. 64 Id. 59

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likely not to understand, and are almost certain not to believe him.65 Reflecting on the sincerity of religious beliefs and asking a jury to determine whether someone honestly believes he or she has undergone a religious experience, he comments: All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credibility than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop’s fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus [sic] or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches, and even more difficult to say how far it is reliance upon a teacher’s literal belief which induces followers to give him money.66 But Justice Jackson does maintain that certain types of religious fraud are prosecutable. As he explains: I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as, for example, if one represents that funds are being used to construct a church when in fact they are being used for personal purposes.67 Considering that individuals often give money to false religious prophets whom the law does not and should not prosecute, he declares that this “is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.”68 65

Id. at 93. Id. at 94. 67 Id. at 95. 68 Id. 66

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After the case was retried, the Ballards were convicted a second time, and once more appealed to the Supreme Court. Again their conviction was reversed, this time because women were intentionally excluded from the jury.69 Thus even the law’s sanctions must contend with the power of religion so that any criminal prosecution of religious fraud must take Ballard into account. We next turn to decisions where religious conscience collided with the dictates of unemployment compensation law. B. Sherbert & Frazee – A Hobbesian Choice: Employment Or Religious Conscience Adell Sherbert, a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. Unable to obtain other 69

Ballard v. United States, 329 U.S. 187, 195 (1946). Ballard has generated its fair share of legal commentary. See, e.g., William P. Marshall, Fifth Annual Criminal Law Symposium: Criminal Law & The First Amendment: Should Free Exercise of Religion Ever Be a Defense to an Otherwise Valid Criminal Law, Or Did Smith Get It Right: Smith, Ballard, and the Religious Inquiry Exception to the Criminal Law, 44 TEX. TECH L. REV. 239 (2011); Stephen Senn, The Prosecution of Religious Fraud, 17 FLA. ST. U.L. REV. 325 (1990); John T. Noonan, Jr., How Sincere Do You Have to Be to Be Religious?, U. ILL. L. REV. 713 (1988); Marjorie Heins, Other People’s Faiths: The Scientology Litigation and the Justiciability of Religious Fraud, 9 HASTINGS CONST. L.Q. 153 (1981); Jorge O. Elorza, Secularism and the Constitution: Can Government Be too Secular?, 72 U. PITT. L. REV. 53, 111 (2010) (arguing that the Court can determine such matters as whether the Ballards healed the sick); Jared A. Goldstein, Is There a “Religious Question” Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 CATH. U. L. REV. 497, 501 (2005) (arguing that courts are competent to resolve some religious questions); Samuel J. Levine, Rethinking the Supreme Court’s Hands-Off Approach to Questions of Religious Practice and Belief, 25 FORDHAM URB. L.J. 85 (1997); Kent Greenawalt, Hands Off: When and About What?, 84 NOTRE DAME L. REV. 913 (2009) (arguing that sometimes religion should be treated specially by law); Gerald F. Masoudi, Kosher Food Regulation and the Religion Clauses of the First Amendment, 60 U. CHI. L. REV. 667, 692 (1993) (arguing that Ballard is not actually an exemption from a neutral law or that religious actors should be exempt from anti-fraud requirements on account of their religious beliefs; rather, under Ballard the state cannot inquire into the validity of a religious assertion when trying to prove fraud).

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employment because she would not work on Saturday, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provided that a claimant is ineligible for benefits if they have failed, without good cause, to accept available suitable work when offered. The State Commission denied her application on the ground that she would not accept suitable work when offered, and the State Supreme Court sustained its action.70 She then appealed to the U.S. Supreme Court, which held that the statute abridged her right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment.71 Justice Brennan, writing for the Court, stated that the government may not regulate religious beliefs;72 it may not compel affirmation of a repugnant belief;73 it may not penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities.74 Finally, it may not employ the taxing power to inhibit the dissemination of particular religious views.75 Remarking that her religiously based conduct does not involve any action prohibited by the state, the Court states that: If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. . . .”76

70

Sherbert v. Verner, 374 U.S. 398 (1963). Id. at 410. (For cases holding that the Government may not put an employee in the predicament of choosing between fidelity to religious beliefs and access to public benefits, see Hobbie v. Unemployment Appeals Com’n of Fla., 480 U.S. 136 (1987).; Thomas v. Review Bd., Ind. Emp’t. Sec. Div., 450 U.S. 707 (1981)). 72 Sherbert, 374 U.S. at 402 (citing Cantwell v. Connecticut, 310 U.S. 296, 304 (1940)). 73 See id. at 402 (citing Torcaso v. Watkins, 367 U.S. 488 (1961)). 74 Id. (citing Fowler v. Rhode Island, 345 U.S. 67 (1953)). 75 Id. (citing Murdock v. Pennsylvania, 319 U.S. 105 (1943)). 76 See id. at 403 (citing NAACP v. Button, 371 U.S. 415, 438 (1963)). 71

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The Court then goes on to conclude that the state’s disqualification for benefits imposes a burden on the free exercise of Sherbert’s religion.77 The Court remarks that it not: [f]ostering the ‘establishment’ of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.78 Finally, the Court examines whether there is a “compelling state interest” that justifies burdening Sherbert’s free exercise of religion.79 A majority of the Justices conclude there is no such interest. Furthermore, the Justices find that to justify burdening the free exercise of religion in this situation would require more than a “showing merely of a rational relationship to some colorable state interest . . . . ; in this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’”80 They conclude that no such danger or abuse has been presented in this case. To quote: No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants 77

Id. at 404. Id. at 409. Interestingly enough, Justice Stewart, in his concurring opinion, concludes that the Court’s decision does constitute recognition of an Establishment of Religion. “To require South Carolina to so administer its laws as to pay public money to the appellant under the circumstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court.” Id. at 415 (Stewart, J., concurring). Such a “double-barreled dilemma” has not gone unnoticed by legal commentators Id. at 413. 2 LOUIS FISHER & KATY J. HARRIGER, AMERICAN CONSTITUTIONAL LAW 565 (Carolina Academic Press, 10th ed. 2013): “These Clauses—the Establishment Clause and the Free Exercise Clause—sometimes overlap and compete. Satisfying one may violate the other. If Congress grants a tax exemption for church property, is that establishment of religion? Taxing the property, however, would interfere with free exercise.” 79 Sherbert, 374 U.S. at 406. 80 Id. (citing Thomas v. Collins, 323 U.S. 516, 530 (1945)). 78

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feigning religious objections to Saturday work might not only dilute the unemployment compensation fund, but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here, because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of the state court. Nor, if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance.81 Therefore the Court was unmoved by South Carolina’s concern that everyone who does not want to work on Saturday if it is a job requirement will quit and be able to collect unemployment benefits by claiming to be a Seventh-Day Adventist.82 It noted that its decision was in accordance with many state court opinions that granted benefits to persons who were physically available for work but unable to find suitable employment solely because of a religious prohibition against Saturday work.83 Twenty-six years later, in 1989, the High Court took Sherbert one step further, ruling that the denial of unemployment compensation benefits to an appellant on the ground that his refusal to work on Sunday was not based on tenets or dogma of an established religious sect, but rather on a sincere, personal, religious belief, violated the Free Exercise Clause of the First Amendment.84 William Frazee refused a temporary retail position offered him by Kelly Services because the job would have required him to work on Sunday. Frazee told Kelly that, as a Christian, he could not work on “the Lord’s day.” Frazee then applied to the Illinois Department of Employment Security for unemployment benefits claiming that there was good cause for his refusal to work on Sunday. His application was denied. Frazee appealed the denial of benefits to the Department of Employment Security’s Board 81

See id. at 407. Id. 83 Id. at 407 n.7 (citing In re Miller, 243 N.C. 509, 91 S.E.2d 241 (1956); Swenson v. Michigan Emp’t Sec. Comm’n, 340 Mich. 430, 65 N.W.2d 709; Tary v. Bd. of Review, 161 Ohio St. 251, 119 N.E.2d 56.) 84 Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829 (1989). 82

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of Review, which also denied his claim. “The Board of Review stated: ‘When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual’s personal belief is personal and non-compelling and does not render the work unsuitable.’”85 The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. “The Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency’s decision was ‘not contrary to law nor against the manifest weight of the evidence,’ thereby rejecting Frazee’s claim based on the Free Exercise Clause of the First Amendment.”86 A unanimous Supreme Court reversed, pointing out that Sherbert,87 Thomas and Hobbie,88 rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question, not on the consideration that each of them was a member of a particular religious sect or on any tenet of the sect forbidding such work. While membership in a sect would simplify the problem of identifying sincerely held beliefs, the Court rejected the notion that one must be responding to the commands of a particular religious organization to claim the protection of the Free Exercise Clause. The sincerity or religious nature of appellant’s belief was not questioned by the courts below, and was conceded by the State, which offered no justification for the burden that the denial of benefits placed on appellant’s right to exercise his religion. Simply because Sunday work has become a way of life did not constitute a state interest sufficiently compelling to override a legitimate free-exercise claim, the Justices reasoned, since there is no evidence that there would be a mass movement away from Sunday employment if appellant succeeded on his claim.89 Accordingly, we note that in Sherbert and Frazee the High Court drew upon the power of religious conviction to overcome the strictures of unemployment compensation law, which, if applied without the Court’s intervention, would have deprived the individuals of public benefits and 85

Id. at 831. Id. 87 Sherbert, 374 U.S. at 410. 88 Hobbie v. Unemployment Appeals Com’n of Fla., 480 U.S. 136 (1987); Thomas v. Review Bd., Ind. Emp’t. Sec. Div., 450 U.S. 707 (1981). 89 Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829, 832–35. 86

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forced them to choose between fidelity to their religious convictions or a livelihood. Let’s now examine the role of religious belief in determining conscientious objector90 status. C.

Seeger & Welsh – Conscientious Objector Status Without a Belief in a Supreme Being

A dramatic example of the power of religion involves the government’s treatment of conscientious objectors, i.e., persons who refuse military service because it conflicts with their religion.91 Noteworthy examples are United States v. Seeger92 and Welsh v. United States93 In Seeger, the U.S. Supreme Court ruled that the exemption from the military draft for conscientious objectors could not be reserved only for those professing conformity with the moral directives of a Supreme Being, but also for those whose views on war derived from a “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those who admittedly qualifying for the exemption comes within the statutory definition.”94 The Court interpreted the Universal Military Training and Service Act95 that exempted from combat persons who objected to participation “by reason of religious training and belief.” The Act defined “religious training and belief” as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but 90

A conscientious objector (CO) is an “individual who has claimed the right to refuse to perform military service” on the grounds of freedom of thought, conscience, and/or religion. See http://www.franklinpublishing.net/freeauthorbooks/civildisobedience.html. 91 Conscientious objector status can also be obtained on the grounds of conscience or belief in non-violence, although courts usually compare such reasons to religious objections. See Welsh v. United Sates, 398 U.S. 333 (1970); infra Section III C. 92 380 U.S. 163 (1965). See Robert. L. Rabin, When is a Religious Belief Religious: United States v. Seeger and the Scope of Free Exercise, 51 CORNELL L.Q. 231 (1966). 93 398 U.S. 333 (1970). 94 Id. at 339. See Malnak v. Yogi, 592 F.2d 197, 207 (3d Cir. 1979) (Adams, J., concurring). Relying on Seeger, Judge Adams concludes that “the modern approach looks to the familiar religions as models in order to ascertain comparison, whether the new set of ideas or beliefs is confronting the same concerns, or serving the same purposes, as unquestioned and accepted ‘religions.’“ 95 50 U.S.C. App. §456(j) (1958).

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[excluding] essentially political, sociological or philosophical views or a merely personal moral code.”96 Despite Congress’ apparent intent to limit the exemption to objections based on traditional religious beliefs, the Court held that this definition applied to Seeger who had stated that “he preferred to leave the question as to his belief in a Supreme Being open,” and that his objection was based on a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.”97 The Court held that “Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views.”98 The Court then held that the test for “belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”99 The Court offered no insight as to the meaning of “occupying a place in the life of the possessor parallel to that filled by the orthodox belief in God” especially given the differences in content and strength of various religious convictions. The Court expanded Seeger in Welsh v. United States,100 where a plurality of the Justices ruled that a person may be classified as a conscientious objector even when they do not affirm or deny belief in a Supreme Being.101 Let’s briefly review the facts in Welsh.

96

Welsh, 398 U.S at 336. Compare BLACKFORD, supra note 20, at 109–14 (arguing that religiously-based conscientious objector status for health care workers should be limited and narrowly construed). 97 Seeger, 380 U.S. at 166. 98 Id. at 165. 99 Id. at 165–66. See Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (Adams, J., concurring), supra note 94. See also Africa v. Com. of Pa., 662 F.2d 1025, 1030 (3d Cir. 1981); see also Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 CAL. L. REV. 753 (1984) (“[T]he Supreme Court’s broad statutory construction of religion [in Seeger and Welsh] . . . has led other courts and scholars to assume that the constitutional definition of religion is now much more extensive than it once appeared to be”). Id. at 760–61. 100 398 U.S. 333 (1970). 101 Id. at 337. See also Gillette v. United States, 410 U.S. 437 (1971); Clay v. United States, 403 U.S. 698 (1971). On the question of sincerity of a religious objector, see Witmer v. United States, 348 U.S. 375 (1955), where the Court held that inconsistent statements can cast legitimate doubts on the sincerity of religious belief.

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Elliott Welsh was convicted by a United States District Judge of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a), and was sentenced to imprisonment for three years. One of his defenses to the prosecution was that § 6(j) of the Universal Military Training and Service Act exempted him from combat and noncombat service because he was “by reason of religious training and belief . . . conscientiously opposed to participation in war in any form.” After finding that there was no religious basis for petitioner’s conscientious objector claim, the Court of Appeals affirmed the conviction.102 The High Court granted certiorari chiefly to review the contention that Welsh’s conviction should be set aside on the basis of the Court’s decision in Seeger. Without passing upon any constitutional arguments, the Court voted to reverse the conviction because of its fundamental inconsistency with Seeger.103 The Justices noted the similarity between Seeger and Elliot Welsh. Both were brought up in religious homes and attended church in their childhood, but in neither case was this church one which taught its members not to engage in war at any time for any reason. Neither Seeger nor Welsh continued his childhood religious ties into his young manhood, and neither belonged to any religious group or adhered to the teachings of any organized religion during the period of his involvement with the Selective Service System. At the time of registration for the draft, neither had yet come to accept pacifist principles. Their views on war developed only in subsequent years, but, when their ideas did fully mature, both made application to their local draft boards for conscientious objector exemptions from military service under § 6(j) of the Universal Military Training and Service Act. That section then provided, in part: Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include 102 103

Welsh v. United States, 404 F.2d 1078, 1080 (9th Cir. 1968). Welsh, 398 U.S. at 335.

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essentially political, sociological, or philosophical views or a merely personal moral code.104 In filling out their exemption applications, both Seeger and Welsh were unable to sign the statement that, as printed in the Selective Service form, stated, “I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form.” Seeger could sign only after striking the words “training and” and putting quotation marks around the word “religious.” Welsh could sign only after striking the words “my religious training and.” On those same applications, neither could definitively affirm nor deny that he believed in a “Supreme Being,” both stating that they preferred to leave the question open. But both Seeger and Welsh affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Their objection to participating in war in any form could not be said to come from a “still, small voice of conscience”; rather, for them, that voice was so loud and insistent that both men preferred to go to jail rather than serve in the Armed Forces. There was never any question about the sincerity and depth of Seeger’s convictions as a conscientious objector, and the same is true of Welsh. In this regard the Court of Appeals noted, “[t]he government concedes that [Welsh’s] beliefs are held with the strength of more traditional religious convictions.”105 But, in: [b]oth cases, the Selective Service System concluded that the beliefs of these men were in some sense insufficiently “religious” to qualify them for conscientious objector exemptions under the terms of § 6(j). Seeger’s conscientious objector claim was denied solely because it was not based upon a belief in a relation to a Supreme Being as required by § 6(j) of the Act, while Welsh was denied the exemption because his Appeal Board and the Department of Justice hearing officer could find no religious basis for the 104

62 Stat. 612. An amendment to the Act in 1967, subsequent to the Court’s decision in the Seeger case, deleted the reference to “Supreme Being” but continued to provide that “religious training and belief” does not include “essentially political, sociological, or philosophical views, or a merely personal moral code.” 1 Stat. 104, 50 U.S.C. § 456(j) (1964 ed., Supp. IV). See Welsh, 398 U.S. at 335–36 n.2 (1970). 105 Welsh, 404 F.2d at 1081.

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registrant’s beliefs, opinions and convictions. Both Seeger and Welsh subsequently refused to submit to induction into the military, and both were convicted of that offense.106 The Justices then comment that having decided in Seeger that all religious conscientious objectors were entitled to the exemption, they then faced “the more serious problem of determining which beliefs were ‘religious’ within the meaning of the statute.”107 The Court concludes, “[the] task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.”108 The Court notes that “reference to the registrant’s ‘own scheme of things’ was intended to indicate that the central consideration in determining whether the registrant’s beliefs are religious is whether the beliefs play the role of a religion and function as a religion in the registrant’s life.”109 Its test for determining whether a conscientious objector’s beliefs are religious within the meaning of § 6(j) was: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.110 The Justices stress that “[w]hat is necessary under Seeger for a registrant’s conscientious objection to all war to be ‘religious’ within the meaning of § 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.”111 The High Court goes on to say that: [i]f an individual deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs

106

Welsh, 398 U.S. at 337–38 (citation omitted). Id. at 338. 108 Id. at 339 (citing United States v. Seeger, 380 U.S. 163, 185 (1965)). 109 See id. 110 Id. (citing Seeger, 380 U.S. at 176). 111 See id. at 339–40. 107

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certainly occupy in the life of that individual “a place parallel to that filled by God” in traditionally religious persons.112 The Court then concludes: Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.113 Therefore, it is quite clear from both Seeger and Welsh that the touchstone of these significant decisions is religious conviction, whether or not it encompasses a belief in God or a Supreme Being. They amply demonstrate the power of religion in our secular society. Let’s now turn to examine its power in the field of education. D.

Yoder – The Amish & Public Education Collide

[M]embers of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin’s compulsory school attendance law (which requires a child’s school attendance until age sixteen) by declining to send their children to public or private school after they had graduated from the eighth grade . . . [T]he Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community . . . [T]hey sincerely believe that high school attendance is contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained their claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, and the state appealed.114

112

Id. at 340. Id. 114 Wisconsin v. Yoder, 406 U.S. 205, 205 (1972). 113

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The U.S. Supreme Court affirmed the decision of the Wisconsin Supreme Court, holding that a State’s interest in universal education is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment,115 and the traditional interest of parents with respect to the religious upbringing of their children so long as they “prepare [them] for additional obligation.”116 The Justices prefaced their decision with a detailed description of the Amish religious values, way of life, and philosophy of education and how it relates to the upbringing of their children.117 The Court pointed out that “however strong the State’s 115

Id. at 214. See also Ginsberg v. New York, 390 U.S.629, 639 (1968). Id. (citing Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535 (1925)). 117 Id. at 209–13. Since the Court thought it worthwhile to include such information in detail in its Opinion, it is worth quoting here: In support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony is uncontradicted. They expressed their opinions on the relationship of the Amish belief concerning school attendance to the more general tenets of their religion, and described the impact that compulsory high school attendance could have on the continued survival of Amish communities as they exist in the United States today. The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century, who rejected institutionalized churches and sought to return to the early, simple, Christian life deemphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith. Id. at 209–10. 116

A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community. Adult baptism, which occurs in late adolescence, is the time at which Amish young people voluntarily undertake heavy obligations, not unlike the Bar Mitzvah of the Jews, to abide by the rules of the church community. Id. at 210.

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Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a “worldly” influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal “learning through doing;” a life of “goodness,” rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society. Id. at 210–11. Formal high school education beyond the eighth grade is contrary to Amish beliefs not only because it places Amish children in an environment hostile to Amish beliefs, with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall within the category of those best learned through example and “doing,” rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith—and may even be hostile to it—interposes a serious barrier to the integration of the Amish child into the Amish religious community. Dr. John Hostetler, one of the experts on Amish society, testified that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society. Id. at 211–12. The Amish do not object to elementary education through the first eight grades as a general proposition, because they agree that their children must have basic skills in the “three R’s” in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily affairs. They view such a basic education as acceptable because it does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period. While Amish

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interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.”118 But, the Court remarked that “[a] way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.”119 The Justices conclude that their refusal to send their children to public school beyond the eighth grade is grounded not in personal preference but rather in fundamental religious belief.120 Thus, they conclude, the burden shifts to the State to prove that “its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way.”121 Wisconsin offered two justifications for its system of compulsory education. To quote: [S]ome degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society.122 accept compulsory elementary education generally, wherever possible. They have established their own elementary schools, in many respects like the small local schools of the past. In the Amish belief, higher learning tends to develop values they reject as influences that alienate man from God. Id. at 212. On the basis of such considerations, Dr. Hostetler testified that compulsory high school attendance could not only result in great psychological harm to Amish children, because of the conflicts it would produce, but would also, in his opinion, ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today. The testimony of Dr. Donald A. Erickson, an expert witness on education, also showed that the Amish succeed in preparing their high school age children to be productive members of the Amish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as “ideal,” and perhaps superior to ordinary high school education. The evidence also showed that the Amish have an excellent record as lawabiding and generally self-sufficient members of society. Id. at 212–13. 118 Id. at 215. 119 Id. 120 Id. at 216. 121 Id. at 221. 122 Id.

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The Court found both justifications wanting. It determined that Amish education was sufficient to prepare a child for living in the Amish agrarian society,123 and that the Amish’s education did not end at the eighth grade level, as the State contended, but rather continued, albeit as vocational education suitable for allowing the child to flourish in the Amish community.124 Regarding the State’s contention that the Amish child would be at a disadvantage if they left the Amish community with only an eighth grade education,125 the Justices countered with: There is nothing in this record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today’s society. Absent some contrary evidence supporting the State’s position, we are unwilling to assume that persons possessing such valuable vocational skills and habits are doomed to become burdens on society should they determine to leave the Amish faith, nor is there any basis in the record to warrant a finding that an additional one or two years of formal school education beyond the eighth grade would serve to eliminate any such problem that might exist.126 Thus the Amish were allowed to continue their practice of withdrawing their children from public education after the eighth grade as a free exercise of religion. Though the decision has its critics,127 it highlights the power of religion. E.

Smith – The Power of Religion Has Limits

So far in this article we have examined cases where the power of religion has swept away all before it. But its power does have its limits, as it should in a society that is a constitutional democracy, not a theocracy. Its frontier was first reached in 1878 when the Supreme Court decided

123

Id. at 222. Id. at 224. 125 Id. 126 Id. at 224–25. 127 BLACKFORD, supra note 20, at 161 (“Yoder was wrongly decided.”) (emphasis added). See also Justice Douglas’ comments disagreeing with the Court’s conclusion that the “matter is within the dispensation of parents alone.” Yoder, 406 U.S. at 241. 124

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Reynolds v. United States.128 Reynolds, a member of the Church of Jesus Christ of Latter Day Saints (Mormons) was arrested and charged with polygamy, which violated the territorial law of Utah.129 Among Reynolds’ defenses was the claim that he was acting in accordance with the dictates of his religion and the territorial law infringed upon his free exercise rights.130 The High Court was not persuaded, announcing that it could not be seriously argued that the free exercise of religion allowed such practices,131 otherwise: To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.132 Moving to 1990 and Employment Division v. Smith,133 where two men were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. The State of Oregon denied their applications for unemployment compensation under a state law 128

98 U.S. 145 (1878). Id. at 146. He was sentenced to two years at hard labor and ordered to pay a fine of $500. Id. at 150–51. 130 Id. at 161. “He argued before the District Court ‘that it was the duty of male members of said church, circumstances permitting, to practice polygamy . . . that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practice polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.’” Id. The issue of polygamy or what some refer to as “plural marriage,” is again before the courts. See Brown v. Buhman, 947 F.Supp.2d 1170 (D. Utah 2013), appeal pending No. 14–4117 (CA10). See also Ronald C. Den Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 EMORY L.J. 1977 (2015). 131 Reynolds, 98 U.S. at 166. 132 Id. at 167. Scalia, J. would cite this very phrase 112 years later in Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990) upholding a state statute criminalizing the use of peyote against a free exercise of religion challenge brought by Native Americans who used it as a sacrament in their religious practices. 133 494 U.S. 872 (1990). 129

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disqualifying employees discharged for work-related “misconduct.” Holding that the denials violated respondents’ First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but U.S. Supreme Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State’s controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause.134 The U.S. Supreme Court reversed, holding that the Free Exercise Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.135 The Justices further held that the use of the law could not be evaluated under the balancing test set forth in Sherbert v. Verner,136 whereby governmental actions that substantially burden a religious practice must be justified by a “compelling governmental interest.” They declared that the balancing test was developed in a context—unemployment compensation eligibility rules—that lent itself to individualized governmental assessment of the reasons for the relevant conduct. They found the test inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary, they concluded, would create an extraordinary right to ignore generally applicable laws that are not supported by “compelling governmental interest” on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is “central” to the individual’s religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith.137

134

Id. Id. at 878–79 (citing Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594–95 (1940)); and Reynolds, 98 U.S. at 167. 136 374 U.S. 398, 402–403 (1963) supra Section III B. 137 Smith, 494 U.S. at 886–87. 135

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Justice Scalia, writing for the majority, commented that the application of the “compelling interest” test, if it is to be applied at all, must be: applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.138 [citation omitted] He continues by reciting a litany of laws that would require constitutionally required religious exemptions from civic obligations of all kinds, including compulsory military service,139 the payment of taxes,140 health and safety regulations such as manslaughter and child neglect laws,141 compulsory vaccination laws,142 child labor laws,143 and animal cruelty laws.144

138

Id. at 888. Gillette v. United States, 401 U.S. 437 (1971). 140 United States v. Lee, 455 U.S. 252 (1982). 141 Funkhouser v. State, 763 P.2d 695 (Okla. Crim. App. 1988). 142 Cude v. State, 377 S.W. 2d 816 (Ark. 1964). 143 Prince v. Massachusetts, 321 U.S. 158 (1944). 144 Emp’t Div. v. Smith, 494 U.S. 872, 889 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (S.D. Fla. 1989)). Ironically, three years the High Court would invalidate the City of Hialeah’s prohibition against certain types of animal slaughter on Free Exercise grounds, See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 139

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He concludes by saying that a legislative exemption for use of peyote is always available but not constitutionally required.145 Indeed, in response to this decision, the U.S. Congress passed the Religious Freedom Restoration Act (RFRA).146 It provides that governments may substantially burden a person’s religious exercise only if they demonstrate a compelling interest and use the least restrictive means of furthering that interest.147 But RFRA did not survive constitutional muster. In City of Boerne v. Flores,148 the High Court ruled that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment in enacting the law,149 and in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal150 the Court held that RFRA applies only to the federal government. One writer commenting on the decision concludes that perhaps Oregon’s law was too broad and that the legislature should have taken a “narrower approach—for example, it could exempt small doses, require licensing, or restrict availability to minors.”151 After the decision, Congress enacted legislation that legalized the use of peyote by Native Americans for ceremonial purposes.152 F.

Hobby Lobby – Religion Challenges the Contraceptive Mandate

The U.S. Supreme Court decision implementing the power of religion is Burwell v. Hobby Lobby Stores, Inc., et al, the Supreme Court 145

Smith, 494 U.S. at 890. Following up on the Court’s suggestion, in 1994 Congress passed legislation legalizing the use of peyote by Native Americans for ceremonial purpose. No Indian may be penalized or discriminated against for such use, the denial of benefits under public assistance programs. American Indian Religious Freedom Act, Pub. L. No. 103-344, 108 Stat. 3125(1994). See also FISHER & HARRIGER, supra note 78, at 588–89. 146 42 U.S.C. § 2000bb-4 (1993). 147 FISHER & HARRIGER, supra note 78, at 588. 148 521 U.S. 507 (1997) (affirming denial of church’s request for a building permit to expand its property in a historic district). In response to this decision, Congress passed “Son of RFRA” that offers religious groups protection in land-use disputes, such as the zoning issues involved in Flores. Religious Land Use and Institutional Persons Act, 42 U.S.C. § 2000cc (2000). See FISHER & HARRIGER, supra note 78, at 589. 149 FISHER & HARRIGER, supra note 78, at 589. 150 546 U.S. 408 (2006). 151 BLACKFORD, supra note 20, at 97. 152 Emp’t Div. v. Smith 494 U.S. 872, 890 (1990).

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ruled that as applied to closely held corporations, the Department of Health & Human Services (HHS) regulations imposing the contraceptive mandate violated RFRA.153 The “contraception mandate” results from the Patient Protection and Affordable Care Act (the “ACA”) and related regulations.154 Under rules effectively written by an entity called the “Institute of Medicine,” corporations like Hobby Lobby had to purchase employee health insurance plans that included coverage for “[a]ll Food and Drug Administration [(“FDA”)] approved contraceptive methods, sterilization procedures, and patient education and counseling”—including so-called emergency contraceptives such as Plan B and Ella—“for all women with reproductive capacity, as prescribed by a provider.”155 This is known as the “contraception mandate” and it permitted no exception for individuals like the owners of Hobby Lobby, who believe that supporting the use of certain contraceptives is morally reprehensible and contrary to God’s word.156 If their company refused to submit to the offending regulations, it would have been subject to a “regulatory tax”—a penalty or fine—that would have amounted to a substantial sum that would have rapidly destroyed their business and the jobs that went with them.157 The controversy arose because although the law exempts “religious organizations” from the contraceptive mandate,158 it applied to for-profit companies like Hobby Lobby even though they are completely owned by very few individuals. (Religious organizations are usually non-profit 501(c)(3) organizations.) Therefore, the question became do for-profit companies have rights under the Free Exercise Clause and the Religious

153

See generally 134 S. Ct. 2751. The decision has many critics. See supra note 3. See generally Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). 155 45 C.F.R. § 147.130 (2015). 156 Conestoga Wood Specialties Corp. v. Sec’y of the United States Dep’t of Health and Hum. Serv., 724 F.3d 377, 392 (2013). 157 The exemptions encompass “grandfathered” plans, which are plans that were in existence on March 23, 2010, see 45 C.F.R. § 147.140 and “religious employers,” see 45 C.F.R. § 147.130(a)(1)(iv)(B). Additionally, the ACA requirement to provide employer sponsored health insurance to employees is entirely inapplicable to employers that have fewer than 50 employees. See 26 U.S.C. § 4980H(a), (c)(2)(A). Id. at 381, n.4. 158 45 C.F.R. § 147.131 (2015). 154

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Freedom Restoration Act (RFRA)?159 The Circuits had split on the issue, with the 10th Circuit holding they did160 and the 3rd Circuit ruling they did not,161 with one dissenting Judge agreeing with the 10th Circuit.162 The Supreme Court answered in the affirmative. HHS argued that companies could not sue because they are forprofit corporations, and their owners could not sue either because the regulations apply only to the companies. The high Court rejected this argument noting that such a reading of the law would “leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations.”163 It maintained that RFRA’s text showed that Congress intended the statute to provide very broad protection for religious liberty, never intending to put merchants to such a choice. Congressional drafters employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but “the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them,” said the Court.164 The Court commented that nothing in RFRA suggested a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals,”165 and noted that it had entertained RFRA and free-exercise claims brought by nonprofit corporations.166 It rejected that notion that for profit corporations cannot exercise religion, remarking “The corporate form alone cannot explain it because RFRA indisputably protects non-profit corporations. And the profit making objective of the corporations cannot explain it because the 159

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (2000). 160 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (2013). 161 See generally Conestoga, 724 F.3d. 162 Id. at 389 (Jordan, J., dissenting). 163 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 164 Id. at 2755. 165 Id. (citing 1 U.S.C. § 1). 166 Id. at 2755 (citing Gonzales v. O Centro Espirita Beneficente Uniao Vegetal, 546 U.S. 418 (2006)) (after the government seized a shipment of sacramental tea containing a Schedule 1 substance, the Court held that it failed to meet its burden under RFRA that barring the substance served a compelling government interest).

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Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants.”167 It mentioned that “business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the ‘exercise of religion’” . . . .168 It also declared that the case of Gallagher v. Crown Kosher Super Market of Mass., Inc.,169 suggested for-profit corporations could exercise religion. The Court pointed out that the contraceptive mandate required Hobby Lobby owners to engage in conduct that seriously violated their sincere religious belief that life begins at conception, and that if they and their company refused to provide contraceptive coverage, they could face economic consequences of about $475 million annually.170 The Justices next addressed HHS’s argument that the connection between what the objecting parties must do and the end that they find to be morally wrong was too attenuated because it is the employee who will choose the coverage and contraceptive method she uses.171 The High Court replied that: . . . RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns [Hobby Lobby owners] . . . implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the 167

Id. at 2756 (citing Braunfeld v. Brown, 366 U.S. 599 (1961)) (rejecting a First Amendment challenge to a Pennsylvania law forbidding the sale of various retail products on Sunday). 168 Id. at 2756 (citing Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990)); See supra Part III E. 169 366 U.S. 617 (1961) (holding that a kosher butcher store had to abide by state law preventing them from selling on Sunday because the legislative history of the law was civil, not religious, since it protected the public by guaranteeing one day in seven to provide a period of rest and quiet, thereby promoting the health, peace and good order of society). 170 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2766 (2014). 171 Id. at 2757.

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Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.172 The Court stated that its “narrow function . . . is to determine’ whether the plaintiffs’ asserted religious belief reflected “an honest conviction,” . . . and there is no dispute here that it does.”173 Finally, the Court concluded that although the interest in guaranteeing cost-free access to the challenged contraceptive methods was a compelling governmental interest, the Government had failed to show that the contraceptive mandate is the least restrictive means of furthering that interest.174 Furthermore, it reasoned the Government had failed to satisfy RFRA’s least restrictive-means standard because HHS had not shown it lacked other means of achieving its desired goal without imposing a substantial burden on the exercise of religion, e.g. the Government could assume the cost of providing the contraceptive coverage objected to by Hobby Lobby.175 G. Lukumi Babalu – Animal Sacrifice as Religious Practice Up to this point in our review we have examined decisions where religion acted as a shield against governmental action. However, in Church of Lukumi Babalu Aye v. Hialeah176 religion acted as a sword to invalidate a state edict. The case concerned municipal ordinances directly aimed at prohibiting a particular religious practice the authorities found repugnant and distasteful. It is to this case we now turn. The Church of the Lukumi Babalu Aye practiced the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion. The animals are killed by cutting their carotid arteries, and are cooked and eaten following all Santeria rituals except healing and death rites. After the church leased land in the city of Hialeah and announced 172 Id. at 2757 (citing Thomas v. Review Bd., 450 U.S. 707, 716 (1981)) (holding the denial of unemployment benefits to a member of Jehovah’s Witnesses whose religious beliefs prevented him from participating in weapons production violated his First Amendment rights). 173 Id. 174 Id. 175 Id. at 2757–58. 176 508 U.S. 520 (1993).

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plans to establish a house of worship and other facilities there, the city council held an emergency public session and passed, many enactments and resolutions, one of which noted city residents’ “concern” over religious practices inconsistent with public morals, peace, or safety, and declared the city’s “commitment” to prohibiting such practices. Other ordinances incorporated Florida’s animal cruelty laws and broadly punished “whoever . . . unnecessarily or cruelly . . . kills any animal,” and has been interpreted to reach killings for religious reasons; one that defined “sacrifice” as “to unnecessarily kill . . . an animal in a . . . ritual . . . not for the primary purpose of food consumption,” and prohibited the “possess[ion], sacrifice, or slaughter” of an animal if it is killed in “any type of ritual” and there is an intent to use it for food, but exempted “any licensed [food] establishment” if the killing is otherwise permitted by law; another prohibited the sacrifice of animals, and defined “sacrifice” in the same manner as the prior ordinance; yet another defined “slaughter” as “the killing of animals for food” and prohibited slaughter outside of areas zoned for slaughterhouses, but included an exemption for “small numbers of hogs and/or cattle” when exempted by state law. The Church filed suit under 42 U.S.C. 1983, alleging violations of their rights under, inter alia, the Free Exercise Clause of the First Amendment. Although acknowledging that the foregoing ordinances are not religiously neutral, the District Court ruled for the city, concluding, among other things, that compelling governmental interests in preventing public health risks and cruelty to animals fully justified the absolute prohibition on ritual sacrifice accomplished by the ordinances, and that an exception to that prohibition for religious conduct would unduly interfere with fulfillment of the governmental interest, because any more narrow restrictions would be unenforceable as a result of the Santeria religion’s secret nature. The Court of Appeals affirmed.177 By a 9-0 vote, the U.S. Supreme Court reversed.178 It prefaced its ruling with a description of the history, background, and tenets of the Santeria religion.179 The Opinion, delivered principally by Justice Kennedy, began by delivering a rebuke to the Hialeah City Fathers: 177

Id. at 520–21. Id. at 521. 179 Id. at 524–25. Since the Court thought it worthwhile to include such information in its Opinion, it is worth quoting here: This case involves practices of the Santeria religion, which originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their 178

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Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation’s essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events, the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs.180 traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, “the way of the saints.” The Cuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments. (citations omitted) Id. at 524. The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. The basis of the Santeria religion is the nurture of a personal relation with the orishas, and one of the principal forms of devotion is an animal sacrifice. The sacrifice of animals as part of religious rituals has ancient roots. Animal sacrifice is mentioned throughout the Old Testament . . . it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. In modern Islam, there is an annual sacrifice commemorating Abraham’s sacrifice of a ram in the stead of his son. (citations omitted) Id. at 524–25. According to Santeria teaching, the orishas are powerful, but not immortal. They depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals. (citations omitted) Id. at 525 Santeria adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced in secret. The open practice of Santeria and its rites remains infrequent. The religion was brought to this Nation most often by exiles from the Cuban revolution. The District Court estimated that there are at least 50,000 practitioners in South Florida today. (citations omitted) Id. 180 Id. at 524.

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The Court continues by describing the Santeria religion, the arrival of the Church of Lukumi in Hialeah and their efforts to secure the necessary licenses and permits to operate, the “great concern regarding the possibility of public ritualistic animal sacrifices” expressed by residents,181 the actions of the City Council in passing numerous resolutions regarding animal sacrifice, and the proceedings in the District Court and Court of Appeals.182 It presented the general proposition that a law which is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.183 The Court remarks that “neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied.”184 Moreover, “a law failing to satisfy these requirements must be justified by a compelling governmental interest and narrowly tailored to advance that interest.”185 The Court determines that the ordinances under review fail to satisfy the Smith requirements.186 After reviewing the record that led to the passage of the many ordinances the city passed once they realized Santeria was going to operate within their borders, the Court concludes that they were passed specifically to target the Church. To quote: The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances. First, though use of 181

Id. at 527 (it must be noted that the city and the courts below never questioned the sincerity of the Church to conduct animal sacrifices for religious reasons. Id. at 531. It is well to remember that animal sacrifices are not unique to the Santeria religion. As Justice Kennedy points out, the Old Testament is replete with animal sacrifices. (citing 14 ENCYCLOPAEDIA JUDAICA 600, 600–05 (1971)). Id. at 524–25. See also THE ENCYCLOPEDIA OF THE JEWISH RELIGION 338 (R. J. ZWI WERBLOWSKY & GEOFFREY WIGODER eds., 1966). 182 See Church of the Lukumi Babalu Aye, 508 U.S. at 526–31. (the District Court concluded that compelling governmental interests “‘fully justify the absolute prohibition on ritual sacrifice’ accomplished by the ordinances.” Id. at 530 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 723 F.Supp. 1467, 1487 (1989)). “The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion.” Id. at 530 (citing Church of Lukumi v. City of Hialeah, 936 F.2d 586 (1991) (per curiam)). 183 Id. at 531 (citing Emp’t Div. v. Smith, 494 U.S. 872 (1990)), supra Section III F. 184 Id. 185 Id. at 531–32. 186 Id. at 532.

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the words “sacrifice” and “ritual” does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council’s enactments discloses the improper attempt to target Santeria. Resolution 87-66, adopted June 9, 1987, recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of any and all religious groups.” No one suggests, and, on this record, it cannot be maintained, that city officials had in mind a religion other than Santeria.187 Although the Court concedes that the purpose of the ordinances could be unrelated to religious animosity, for example, the suffering or mistreatment of sacrificed animals and health hazards from improper disposal, it nevertheless decides that their design was to accomplish a “religious gerrymander,” an impermissible attempt to target the Santeria religion and their religious practices.188 Examining a definition of “sacrifice” provided by one of the ordinances, the Justices determine that “[t]he definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter.”189 Deciding not to consider whether differential treatment of two religions is itself an independent constitutional violation, the Court comments that: It suffices to recite this feature of the law as support for our conclusion that Santeria alone was the exclusive legislative concern. The net result of the gerrymander is that few, if any, killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the orishas [spirits], not food consumption. Indeed, careful drafting ensured that, although Santeria

187

Id. at 534–35. Id. at 535 (citing Walz v. Tax Comm’n of N.Y.C., 397 U.S.664, 696 (1970)). 189 Id. at 536. 188

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sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished.190 After reviewing the remaining ordinances and determining that they specifically targeted the Santeria religion, and referencing the public comments directed against it, the Court determines that they were not neutral. To quote: In sum, the neutrality inquiry leads to one conclusion: the ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances, by their own terms, target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.191 The Court next turns to the second requirement of the Free Exercise Clause, i.e., that laws burdening religious practice must be of general applicability. After finding that the ordinances are under inclusive as regards promoting public health and preventing cruelty to animals,192 it said that: . . . each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief. The ordinances have “every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers], but not upon itself.” This precise evil is what the requirement of general applicability is designed to prevent.193 With the Court finding that Hialeah’s ordinances violated the Free Exercise rights of the adherents of the Santeria religion, they were allowed to practice their faith in the manner they have been doing for many years. 190

Id. Id. at 542. 192 Id. at 543–45. 193 Id. at 545–46 (citing Florida Star v. B.J.F., 491 U.S. 524, 542 (1989)). 191

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One observer maintains that this case is an example of religious persecution194 and believes it, along with Smith, is “correctly decided.”195 IV. THE POWER OF RELIGION Religion has always been with us. As one writer remarked, “The history of religion is coterminous with the history of mankind.”196 To give the reader a proper understanding of the importance of this concept, it is worthwhile to recall the comments of a respected authority on the subject: All religions say in one way or another that man does not, and cannot, stand-alone. He is vitally related with and even dependent on powers in Nature and Society external to himself. Dimly or clearly, he knows that he is not an independent center of force capable of standing apart from the world.197 Although belief in God in the higher religions has sometimes led men to think meanly of the world around them, in the faith that they are pilgrims and strangers here on earth, and heaven is their home, this belief is far from typical of men’s religions in general; it is in fact a special sort of belief produced under special conditions. The general attitude is that the relation between man and his world is organic and vital, not accidental and external. If the outer face of Nature is sometimes mistrusted, it is usually in the name of something deeper within that is assigned a higher degree of reality.198 The power of religion is so strong that it exerted its influence even in primitive societies.199 194

See BLACKFORD, supra note 20, at 98. Id. at 99. 196 REESE, supra note 13, at 488. 197 JOHN B. NOSS, MAN’S RELIGIONS 2 (3d ed. 1963). 198 Id. 199 One observer has enumerated the common features of primitive religions: recognition of the sacred; expression of anxiety in ritual; inextricable intermingling of religion and magic; belief in mana (dynamism); animism; veneration and worship of spirits; recognition of high gods; types of magic; divination; taboo; purification rites; sacrifice; mythology; attitudes toward the dead: ancestor worship; and totemism. Id. at 14–31. 195

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No matter how highly one may regard law, it cannot answer questions regarding the ultimate meaning and purpose of our lives. As one observer noted: Social justice, equality, due process of law—and also personal honesty, decency, love of neighbor—enormously desirable as they are, will not necessarily create the mystery and beauty and sense of ultimate purpose without which life is impoverished.200 For most people, only religion can provide meaning to their lives. Furthermore, in American society, law and religion support each other. Very often religion furnishes the moral justification for law.201 It has been observed that the Founding Fathers who drafted the First Amendment to the U.S. Constitution202 would almost certainly agree that the law could not survive the disappearance of religious faith in America.203 One commentator reflecting on this viewpoint has written: It was partly for that reason (and not only to protect civil liberties) that they forbade the enacting of any law prohibiting the “free exercise” of religion. At the same time, they were concerned lest the government should prefer one set of religious beliefs or practices over another, or, for that matter, religious beliefs over irreligious beliefs, and so, by the clause forbidding any “establishment” of religion, they prohibited government aid to religion—not all kinds of government aid, but those kinds which could be considered an “establishment.”204 Of course, tension exists between law and religion, a tension recognized in our constitutional doctrine of the separation of church and 200

BERMAN, supra note 1, at 134–35. See CHRISTOPHER DAWSON, RELIGION AND CULTURE (1948), reprinted in BERMAN, supra note 1, at 174, n.1. 202 The amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. 203 BERMAN, supra note 1, at 140. 204 Id. 201

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state—a doctrine that protects the religious liberties of minorities while at the same time protecting the political power of the majority.205 To be sure, tension is present within law and religion, a tension between their structural and spiritual elements. Within law, the tension between justice and mercy,206 between the general rule and its application in the exceptional case; within religion, the tension between ecclesiastical institutions and the freedom of the spirit to move where it pleases.207 But it is precisely these tensions that provide the freedom for religion to exercise its influence on our society while at the same time our giving society independence from its influence. V. CONCLUSION The cases we have reviewed give us a glimpse into the power of religion in our society. Although we live in a secular world, the impact of religion on our lives cannot be doubted. A healthy community needs the civilizing influence of religion. Otherwise it is in danger of being cast adrift in a sea of ever-changing fads and trends that can only result in a spiritually impoverished citizenry and a government without any direction or purpose. In such an environment, it is only fair to ask how long democracy can endure.

205

Id. at 136. One is reminded of Portia’s famous “The quality of mercy” speech in Shakespeare’s MERCHANT OF VENICE where she advocates tempering justice with mercy. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 1. 207 BERMAN, supra note 1, at 137. 206

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FACING THE BRAVE NEW WORLD OF KILLER ROBOTS: ADAPTING THE DEVELOPMENT OF AUTONOMOUS WEAPON SYSTEMS INTO THE FRAMEWORK OF THE INTERNATIONAL LAW OF WAR Roni A. Elias* INTRODUCTION Science fiction and fantasy have long provided stories about “killer robots,” machines with the power to kill, the independent capacity to identify targets, and to decide when to engage them. Perhaps the most popular of these stories was represented in the Terminator film franchise, starring Arnold Schwarzenegger as a time-travelling robot dispatched by an evil government as an assassin. In the end, the Terminator’s capacity for independent thinking was so great that he could reject the instructions programmed into his central processing unit and turn on the other autonomous robots which had sent him on his mission in the first place. In a sense, these films both celebrate and condemn the capacities of autonomous killing machines, showing both the benefits and the dangers that they were capable of creating. As weapon technology becomes more sophisticated, and as computers continue to progress rapidly in their capacity for processing and analyzing information, the prospect of a real-life “killer robot” moves ever closer. Many nations, especially the United States and several countries in Western Europe, have developed weapon systems with an advanced capacity for identifying targets and for making their own decisions about when to fire upon them. These systems include both anti-missile defense systems and border-patrolling robotic sentries. It is not hard to imagine that * Roni Elias (J.D. Florida A&M University College of Law, 2015), Assistant and Proxy for the Chairman of the Creditor Committee in the international law case In re Bank of Credit & Commerce Int’l (London, Luxembourg, Dubai, Qatar, Cayman Islands, India); coordinated activities of multiple law firms, helping to recover over $9.1 Billion for international victims. To M.G.S, the love and blessing of my life, thank you for making me smile every minute of every day. To Dr.’s Aida & Adil Elias, my first great teachers in life, I thank you and appreciate more than words can ever say. I am truly grateful to the best brother anyone could be blessed to have, my brother, Pierre A. Elias.

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something like Schwarzenegger’s Terminator may not be a pure fantasy after all. Weapon systems capable of some level of autonomous decision making have the potential to transform armed conflict, not only in a technical and strategic sense, but also in a legal one. The existing international law of armed conflict and principles of international human rights impose significant restrictions on how weapons can be used. A foundational premise of that international legal regime is the presumption that there is a human being with the capacity for moral judgment in control of the weapon. There is an emerging debate about whether the existing structure of international law can be adapted to the inclusion of autonomous weapon systems. Some participants in this debate contend that autonomous weapon systems cannot be deployed without destroying the human moral agency that is required for compliance with international law. Others contend that autonomous weapon systems differ from other kinds of weapons only in small details, not in essential moral character, and that they can be effectively regulated just like any other weapon. This article examines the current state of development of autonomous weapon systems, the existing international law regulating the use of weapons in armed conflict, and the debate about the risks and benefits of integrating autonomous weapon systems into contemporary warfare. The basis of this examination considers what is essential for continued compliance with the guiding principles of international law and about what methods may be adapted to assure that the law evolves with weapons technology. This article concludes that autonomous weapon systems can only conform to the principles of international law if they are ultimately guided in some respect by a human being who can be morally accountable for how the weapon is used. Part I will describe the nature and function of autonomous weapon systems, Part II will examine the current and future international legal framework for the use of such weapons, and Part III will offer proposals for going forward. I. THE NATURE OF AUTONOMOUS WEAPON SYSTEMS As an initial matter, it is important to define “autonomy” in the context of weapon systems. “Autonomy” must be distinguished from 71


“automatic” or “automated.”1 An “automatic” system is one that operates within a structured and predictable environment, such as a household appliance.2 By contrast, an “autonomous” system is one that is designed to operate in a dynamic and unstructured environment, and its actions, like those of human beings, may be unpredictable, especially in situations that can be chaotic, like armed conflict, and in situations where they may interact with other autonomous systems.3 However, this relatively large degree of unpredictability does not mean that an autonomous system has anything like “free will” or “moral agency.”4 This means that “autonomous” weapon systems all currently operate under some significant degree of human control. This is not likely to change. As one analyst pointed out, “while the relevant technology is developing at an exponential rate, and full autonomy is bound to mean less human involvement in ten years’ time compared to today, sentient robots, or strong artificial intelligence are not currently in the picture.”5 Thus, for the foreseeable future, any discussion of autonomous weapon systems must presuppose some level of human agency in the system’s operation. The key to understanding the nature and legal significance of autonomous weapon systems lies in accurately describing the degree of human agency involved in the system and the way in which that agency can be exercised. Most of the current definitions of “autonomous weapon system” are premised on making that kind of description. The United States Department of Defense defines “autonomous weapon system” as: a weapon system that, once activated, can select and engage targets without further intervention by a human operator. This includes human-supervised autonomous weapon systems that are designed to allow human operators to

1

Christof Heyns (Special Rapporteur), Rep. on Extrajudicial, Summary, or Arbitrary Execution, ¶ 42, U.N. Doc. A/HRC/23/47 (Apr. 9, 2013), http://www.ohchr.org/ Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-47_en.pdf. 2 Id. 3 Id. 4 Id. ¶ 43. 5 Id.

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override operation of the weapon system, but can select and engage targets without further human input after activation.6 The crux of full autonomy is a capability to identify, target, and attack a person or object without human interface. Although a human operator may retain the ability to take control of the system, it can operate without any control being exercised. Of course, a fully autonomous system is never completely human free. Either the system designer or operator would at least have to program the system to function pursuant to specified parameters. Human Rights Watch, an international organization dedicated to advocacy for human rights, offers an essentially similar definition that involves three different categories of autonomous weapon systems.7 A “human in the loop” system is one in which a human directs the system to select a target and attack it.8 A “human on the loop” weapon is one in which the system can select and attack targets without human intervention; but a human being retains oversight over the system’s operation and can override the system’s decisions about targeting and engagement.9 The third category known as “human out of the loop weapon[,]” can attack without any human interface.10 Nations with technologically advanced military capacities are moving quickly towards developing weapon systems with ever-higher degrees of autonomy. For example, the United States Navy has deployed a “Phalanx” system, which defends ships against incoming missiles and rockets through automated identification of targets and automated firing commands.11 Similar air-defense weapon systems include the United

6

U.S. DEP’T OF DEF., DIRECTIVE 3000.09, AUTONOMY IN WEAPON SYSTEMS 13–14 (Nov. 21, 2012), http://www.dtic.mil/whs/directives/corres/pdf/300009p.pdf. 7 HUMAN RIGHTS WATCH, LOSING HUMANITY: THE CASE AGAINST KILLER ROBOTS 2 (2012), https://www.hrw.org/sites/default/files/reports/arms1112_ForUpload.pdf. 8 Id. 9 Id. 10 Id. 11 MK 15 - Phalanx Close-In Weapons System (CIWS), U.S. NAVY (Nov. 15, 2013), http://www.navy.mil/navydata/fact_display.asp?cid=2100&tid=487&ct=2.

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States’ “Patriot Missile System”12 and Israel’s “Iron Dome.”13 The United Kingdom has developed “fire and forget” Brimstone missiles, which can act on their own to identify tanks, cars, and buses and find targets in a predetermined region without further human involvement.14 Another example of a highly automated weapons defense system is Germany’s “NBS MANTIS” (formerly known as the NBS C-RAM), a “short-range force protection system [that] will detect, track and shoot the projectiles within a close range of the target base.”15 Within less than five seconds after detecting targets about three kilometers away, it can fire six 35mm automatic guns at 1,000 rounds per minute.16 The system has a “very high degree of automation, including automatic target detection and engagement processes which the operator only has to monitor.”17 Autonomy is even coming to aircraft. “KMAX” helicopters, which were developed for the United States Army and Marines, can fly autonomously along pre-programmed routes.18 The United States Navy has developed a combat aircraft, the “X-47B,” which can take off and land by itself on an aircraft carrier.19 The British Royal Air Force is currently

12

See Patriot Missile Long-Range Air-Defense System, United States of America, ARMYTECH, http://www.army-technology.com/projects/patriot/ (last visited Mar. 14, 2016). 13 Alex Gatopoulos, How Successful Was Israel’s Iron Dome?, AL JAZEERA (Sept. 8, 2014), http://www.aljazeera.com/news/middleeast/2014/08/israel-iron-dome-gazarockets-201481712494436388.html. 14 John Markoff, Fearing Bombs that Can Pick Whom to Kill, N.Y. TIMES (Nov. 11, 2014), http://www.nytimes.com/2014/11/12/science/weapons-directed-by-robots-nothumans-raise-ethical-questions.html?hp&action=click&pgtype=Homepage&module= secondcolumn-region. 15 NBS MANTIS Air Defence Protection System, Germany, ARMY-TECH., http://www.army-technology.com/projects/mantis/ (last visited Mar. 14, 2016). 16 Id. 17 Germany Orders MANTIS C-RAM Base Defense Systems, DEF. INDUSTRY DAILY (Jan. 17, 2011), http://www.defenseindustrydaily.com/Germany-Orders-Skyshield-C-RAMBase-Defense-Systems-05418/. 18 K-MAX, LOCKHEED MARTIN, http://www.lockheedmartin.co.uk/us/products/kmax.html (last visited Mar. 14, 2016). See also Michael Hoffman, Army and Marine Corps Move to Add K-MAX to Fleets, MILITARY.COM (Jun. 20, 2013), http://www.military.com/dailynews/2013/06/20/army-and-marine-corps-move-to-add-kmax-to-fleets.html. 19 X-47B UCAS Makes Aviation History . . . Again!, NORTHROP GRUMMAN, http://www.northropgrumman.com/Capabilities/X47BUCAS/Pages/default.aspx (last visited Mar. 14, 2016).

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developing an attack aircraft called the “Taranis,” which is expected to be capable of autonomous supersonic flight.20 Autonomy is not reserved for aircraft and missile defense applications. Some new systems perform functions previously reserved for individual foot soldiers on the battlefield. In 2010, South Korea launched a system, the SGR-1, which performed the functions of a sentry for use along the boundaries of its demilitarized zone (“DMZ”) with North Korea. This system was comprised of a series of stationary robots with the capacity to sense the presence of humans within the DMZ through heat and motion sensors.21 When a person is detected in the DMZ, these robot sentries transmit a warning to a command center.22 In the command center, human soldiers can communicate with the person identified in the DMZ and decide whether to fire the robot’s 5.5mm machine gun or its 40mm grenade launcher.23 The SGR-1’s sensors can detect people two miles away during the day and one mile away at night, and its guns have a lethal range of two miles.24 Currently, only the surveillance functions of the system are entirely automated; a human command is still required to fire on a target.25 The journal of the Institute of Electrical and Electronics Engineers has reported, however, that “the robot does have an automatic mode, in which it can make the decision.”26 Israel has developed a similar sentry system. It has deployed the “Guardium,” “a semi-autonomous unmanned ground system,” which is 20

Jeffrey S. Thurnher, Examining Autonomous Weapon Systems from a Law of Armed Conflict Perspective, in NEW TECHNOLOGIES AND THE LAW OF ARMED CONFLICT 213, 217 (H. Nasu & R. McLaughlin eds., 2014). 21 Jon Rabiroff, Machine Gun-Toting Robots Deployed on DMZ, STARS & STRIPES (July 12, 2010), http://www.stripes.com/machine-gun-toting-robots-deployed-on-dmz1.110809. 22 Id. 23 South Korea’s Military Technologies: Defensive Robots and Urine Powered Batteries, KOREA IT TIMES (July 14, 2010), http://www.koreaittimes.com/story/9750/south-koreasmilitary-technologies-defensive-robots-and-urine-powered-batteries. See also Tim Hornyak, Korean Machine-gun Robots Start DMZ Duty, CNET (Jul. 14, 2010), http://www.cnet.com/news/korean-machine-gun-robots-start-dmz-duty/. 24 Rabiroff, supra note 21. 25 Id. 26 Jean Kumagai, A Robotic Sentry for Korea’s Demilitarized Zone, IEEE SPECTRUM (Mar. 1, 2007), http://spectrum.ieee.org/robotics/military-robots/a-robotic-sentry-forkoreas-demilitarized-zone.

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reportedly used for patrolling Israel’s border with Gaza.27 According to a brochure published by its manufacturer, G-NIUS, the Guardium “was designed to perform routine missions, such as programmed patrols along border routes, but also to autonomously react to unscheduled events, in line with a set of guidelines specifically programmed for the site characteristics and security doctrine.”28 While the brochure implies there is some level of human oversight because it refers to stationary, mobile, and portable control terminals, it also notes that the Guardium can have “autonomous mission execution.”29 This seems to mean that the Guardium could identify targets and fire on them without human direction. None of these weapons are currently capable of selecting and attacking targets entirely without direct human action. But even in these systems, human participation can be significantly limited. In discussing Germany’s “C-RAM,” one commentator has noted that “[t]he human is certainly part of the decision making but mainly in the initial programming of the robot. During the actual operation of the machine, the operator really only exercises veto power, and a decision to override a robot’s decision must be made in only half a second, with few willing to challenge what they view as the better judgment of the machine.”30 However, progress in autonomous technologies indicates that the time is not far off when weapons will be capable of targeting and attacking autonomously, without immediate human control—that is, without humans “in the loop,” and with, at the most, human supervision.31 The Ministry of Defense in the United Kingdom has stated that it “currently has no intention to develop systems that operate without human intervention in the weapon command and control chain, but it is looking to increase levels of automation where this will make systems more effective.”32 Similarly, the United States Defense Department anticipates making further substantial 27

HUMAN RIGHTS WATCH, supra note 7, at 15. Guardium UGV, G-NIUS UNMANNED GROUND SYSTEMS, http://g-nius.co.il/pdf/ brochures/GuardiumUGV.pdf (last visited Mar. 14, 2016). 29 Id. 30 P.W. Singer, War of the Machines: A Dramatic Growth in the Military Use of Robots Brings Evolution in Their Conception, SCI. AM., July 2010, at 63. 31 Thurnher, supra note 20, at 226–27. 32 U.K. MINISTRY OF DEF., JOINT DOCTRINE NOTE 2/11: THE UK APPROACH TO UNMANNED AIRCRAFT SYSTEMS ¶ 508 (March 30, 2011), https://www.gov.uk/ government/uploads/system/uploads/attachment_data/file/33711/20110505JDN _211_UAS_v2U.pdf. 28

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advances in weapons automation, as long as any new systems would “allow commanders and operators to exercise appropriate levels of human judgment over the use of force.”33 II. THE LAW OF AUTONOMOUS WEAPONS A.

Existing Law Governing the Use of Weapons

The law governing the use of weapons in armed conflict comes from a variety of international agreements and treaties, which can be classified into two principal categories: the law of armed conflict, which is principally shaped by the Geneva Conventions; and the law of international human rights, which is shaped by principles and rules adopted in numerous international conventions, especially those organized in connection with the United Nations.34 These laws apply to nations that are signatories to or participants in the relevant conventions, and they are often reinforced by legislation adopted within the signatory or participant nations.35 The rules relevant to the use of any weapon system, including autonomous weapon systems, relate to rules governing the kinds of weapons that can be used as means and methods of warfare and the way in which those weapons can be targeted.36 The law of armed conflict proceeds from several foundational premises. One premise is that combatants do not have an unlimited right to choose means and methods of warfare.37 “This is sometimes referred to as the principle of limitation, which is reflected in a series of treaty-based rules restricting specific means and methods of warfare.”38 Another cardinal principle is that of “distinction.” The principle of distinction requires that the parties to a conflict “distinguish between the civilian population and combatants, and between civilian objects and military objectives,” so that they focus their attacks on combatants and legitimate military objectives.39 33

U.S. DEP’T OF DEF., supra note 6, at 2; see also Thurnher, supra note 20, at 223–26. INT’L COMM. OF THE RED CROSS, HANDBOOK ON INTERNATIONAL RULES GOVERNING MILITARY OPERATIONS 21–22 (2013), https://www.icrc.org/eng/assets/files/ publications/icrc-002-0431.pdf. 35 Id. at 22. 36 Id. at 143, 177. 37 Id. at 177. 38 Id. 39 Michael N. Schmitt, Autonomous Weapons Systems and International Humanitarian Law: A Reply to the Critics, HARV. NAT’L SECURITY J. FEATURES 14–15 (Feb. 5, 2013), 34

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These principles lead to certain specific rules about the use of weapons. Combatants may not use any weapon that, by its very nature causes superfluous injury or unnecessary suffering to combatants, or to use any weapon in a manner that causes superfluous injury or unnecessary suffering.40 International humanitarian law also prohibits the use of any weapon that cannot be directed at a specific military objective.41 Thus, a weapon or weapon system is unlawful per se if it will strike combatants, military objectives, civilians, and civilian objects without distinction. As the Red Cross puts it, “it is prohibited to use a weapon which is by its very nature ‘indiscriminate.’”42 It is also unlawful to use a weapon in a disproportionate manner.43 According to the Red Cross, “It is prohibited to engage in an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”44 International law also establishes rules about how targets are chosen for weapons. In general, the law of targeting focuses on three principles: distinction, proportionality, and precautions in attack.45 These principles apply in both international armed conflict, as well as in armed conflict within a single nation.46 With respect to distinction, combatants must distinguish between military and civilian47 persons and objects, and combatants may not target any civilian person or object unless that person or object is taking a direct part in hostilities.48 In an international armed conflict, lawful military targets include military objectives and individual combatants who are

http://harvardnsj.org/wp-content/uploads/2013/02/Schmitt-Autonomous-WeaponSystems-and-IHL-Final.pdf. 40 YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 63–67 (2004). 41 INT’L COMM. OF THE RED CROSS, supra note 34, at 180. 42 Id. 43 Id. at 181. 44 Id. 45 Id. at 143. 46 Id. 47 “Civilians” are defined as “all persons who are not members of the armed forces of a party to a conflict.” Id. at 144. 48 Id. at 144.

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actively involved in hostilities.49 On the other hand, it is unlawful to target combatants that are “hors de combat,” medical and religious personnel, and, of course, civilians—except for those directly participating in the conflict.50 Targeting rules also include principles that are the inverse of those prohibiting indiscriminate attacks. Targeting is consistent with international law when it: is directed at a specific lawful military target, employs means and methods of combat that are capable of being directed at a specific lawful military target, and employs means and methods of combat that can be limited as required by the law of armed conflict.51 In the event that an attack is aimed at clearly distinct military objectives within an area containing a concentration of civilians or civilian objects, the attack must be subdivided into separate attacks on each of the multiple military objectives.52 With respect to proportionality, an attack is prohibited by international law “when it may be expected to cause incidental harm to civilians and civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated.”53 While the theory behind the principle of proportionality is clear, it can be difficult to translate that theory into practice. Although there is no uncertainty about the idea that civilian harm should not be excessive in relation to military advantages gained, it can be difficult to evaluate the cost of any civilian harm in terms of the benefits of military advantage because those costs and benefits are measured on entirely different scales.54 As a practical matter, there is no objective formula that can be used to determine when any particular use of force is “excessive,” and the analysis of when this principle has been violated usually depends upon drawing analogies with truly outlandish cases, a method that hardly lends itself to objectivity.55 Thus, the method for assessing proportionality typically involves examining what was done in prior situations and determining a course of future action based on similarities and differences between the prior situation and the current one.56 49

Id. at 146. Id. 51 Id. at 147. 52 Id. 53 Id. 54 See WILLIAM H. BOOTHBY, THE LAW OF TARGETING 96–97 (2012). 55 See id. 56 In the United States military, officers charged with making broad-scale targeting decisions sometimes employ sophisticated software programming to estimate likely 50

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Finally, with respect to precautions in attack, international law requires “that constant care must be taken by all those involved in the conduct of military operations to spare the civilian population, civilians, and civilian objects.”57 Principles relating to precautions in attack require a combatant to take feasible precautions in the circumstances to spare the civilian population.58 The concepts of “precautions” and “feasibility” are both terms of art in the law of armed conflict, providing military commanders with reasonable discretion in undertaking attacks. The commander must exercise this discretion with reasonableness and good faith, and in “planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.” 59 In addition to these rules, states have an obligation to review new weapon systems to assure that they will be capable of complying with these rules. The International Committee of the Red Cross has contended that “the faithful and responsible application of its international law obligations would require a State to ensure that the new weapons, means and methods of warfare it develops or acquires will not violate these obligations.”60 Although not all states have accepted this proposition, many weaponsproducing states have agreed to abide by it, including the United States.61 collateral damage from the employment of a particular weapon in particular circumstances. See Schmitt, supra note 39 at 19. But such software is a fairly blunt instrument because it depends upon specific assumptions that do not apply in every case and only address the likely collateral damage—not the comparison to military advantage. Id; see also GEOFFREY S. CORN ET AL., THE LAW OF ARMED CONFLICT: AN OPERATIONAL APPROACH 194 (2012). 57 INT’L COMM. OF THE RED CROSS, supra note 34, at 149. 58 DINSTEIN, supra note 40, at 138–40; see also IAN HENDERSON, THE CONTEMPORARY LAW OF TARGETING: MILITARY OBJECTIVES, PROPORTIONALITY, AND PRECAUTIONS UNDER ADDITIONAL PROTOCOL I 157–96 (2009). 59 Customary IHL: Practice Relating to Rule 14. Proportionality in Attack, INT’L COMM. OF THE RED CROSS, https://www.icrc.org/customary-ihl/eng/docs/v2_cha_ chapter4_rule14_sectionc (last visited Mar. 15, 2016) (quoting German declaration on Article 57, Protocol I). 60 INT’L COMM. OF THE RED CROSS, A GUIDE TO THE LEGAL REVIEW OF NEW WEAPONS, MEANS AND METHODS OF WARFARE: MEASURES TO IMPLEMENT ARTICLE 36 OF ADDITIONAL PROTOCOL I OF 1977 4 (2006), http://www.icrc.org/eng/assets/files/other/icrc_002_0902.pdf. 61 The governments that have adopted formal review mechanisms include Australia, Belgium, the Netherlands, Norway, Sweden, the United Kingdom, and the United States.

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B.

The Current Debate Over Whether Autonomous Weapon Systems Can Comply with Existing Rules of International Law for the Use of Weapons

There is currently an intensive debate about whether autonomous weapon systems can be effectively regulated by the existing regime of international law with regard to the use of weapons in armed conflict. This debate involves both government agencies and commentators, who advocate on military policy. In particular, the United Nations has sponsored numerous explorations of different perspectives on this subject through its Convention on Certain Conventional Weapons,62 under the auspices of its Human Rights Council,63 as well as its Institute for Disarmament Research.64 Other organizations have sponsored discussions on how best to regulate the use of autonomous weapon systems, including the International Committee of the Red Cross (“ICRC”),65 along with academic institutions66 and think tanks.67 Id. at 5–6, n. 8. For the United States’ description of its own policy concerning weapons review, see U.S. DEP’T OF DEF., DIRECTIVE 5000.1: THE DEFENSE ACQUISITION SYSTEM, E1.1.15 (May 12, 2003). https://acc.dau.mil/CommunityBrowser.aspx?id=314790& lang=en-US. 62 Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Report of the 2014 Informal Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS), U.N. Doc. CCW/MSP/2014/3 (June 11, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/ G14/048/96/PDF/G1404896.pdf?OpenElement. 63 See Christof Heyns, supra note 1. 64 U.N. INST. FOR DISARMAMENT RESEARCH, FRAMING DISCUSSIONS ON THE WEAPONIZATION OF INCREASINGLY AUTONOMOUS TECHNOLOGIES: IMPLICATIONS FOR SECURITY AND ARMS CONTROL (2014), http://www.unidir.org/ files/publications/pdfs/framing-discussions-on-the-weaponization-of-increasinglyautonomous-technologies-en-606.pdf. 65 INT’L COMM. OF THE RED CROSS, AUTONOMOUS WEAPON SYSTEMS: TECHNICAL, MILITARY, LEGAL AND HUMANITARIAN ASPECTS (2014), https://www. icrc.org/eng/assets/files/2014/expert-meeting-autonomous-weapons-icrc-report-2014-0509.pdf. 66 GENEVA ACAD. OF INT’L HUMANITARIAN LAW AND HUMAN RIGHTS, EXPERTS MEETING ON ARMED DRONES AND ROBOTS UNDER INTERNATIONAL LAW (2013), http://www.geneva-academy.ch/docs/expert-meetings/Weapons%20Law%20 Review_Summary%20of%20Expert%20Meeting%20Discussions_FINAL-1.pdf. 67 Autonomous Military Technologies: Policy & Governance for Next Generation Weapon Systems, CHATHAM HOUSE: THE ROYAL INST. OF INT’L AFFAIRS (Feb. 25, 2014), http://www.chathamhouse.org/Autonomous.

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Numerous common points have been made in the many different forums for this debate. At one end of the spectrum, some have argued that autonomous weapon systems have the capacity to make international law compliance easier. At the other end of the spectrum, advocates have expressed serious concerns that the development of autonomous weapon systems will make such compliance much more difficult, chiefly by removing the moral dimension of decision making about the use of deadly force. Those who are optimistic about the prospects for integrating autonomous weapon systems into the existing international legal regime have focused on several points. First, they note that such systems will be faster at sensing and processing information.68 Second, the increased capacity for acquiring and processing information will increase thereby increasing the likelihood of making accurate decisions about targeting, as well as the flexibility and speed with which those decisions can be made.69 Third, commentators have suggested that there are significant advantages to removing the dynamic of human emotion from decisions about how to target and apply deadly force. According to this view, autonomous weapon systems will be more effective than human beings at undertaking dull, dirty, and dangerous tasks.70 Moreover, the absence of particular emotions such as fear, the desire for revenge, or the desire to promote individual selfinterest may lead to outcomes that are, on the whole, less harmful than those that could be accomplished through human agency.71 As one scholar put it, “it seems more reasonable to expect (and to ensure) a person who devises and constructs an autonomous weapon in a peaceful workplace to comply with [international human rights law] than a soldier on the battlefield or in a hostile environment.”72 Finally, the optimists about autonomous weapon 68

See, e.g., W. H. BOOTHBY, CONFLICT LAW: THE INFLUENCE OF NEW WEAPONS TECHNOLOGY, HUMAN RIGHTS AND EMERGING ACTORS 104–07 (2014); and Marco Sassóli, Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified, 90 INT’L L. STUD. 308, 310 (2014). 69 BOOTHBY, supra note 68, at 104; Sassóli, supra note 68, at 310. 70 BOOTHBY, supra note 68, at 104. 71 INT’L COMM. OF THE RED CROSS, INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS 40 (2011), https://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-internationalconference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf; Kenneth Anderson et al., Adapting the Law of Armed Conflict to Autonomous Weapon Systems, 90 INT’L LAW STUD., 386, 393 (2014); BOOTHBY, supra note 68, at 104. 72 Sassóli, supra note 68, at 310.

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systems expect that, by replacing human fighters, those systems have the capacity to save lives.73 Those who are more skeptical about autonomous weapon systems contend that their increasing use will diminish the force of international human rights law and the law of armed conflict by greatly diminishing, if not completely removing, the moral dimension of weapons use. According to this perspective, reliance on autonomous weapon systems removes positive human emotions, such as compassion or mercy, from the decisionmaking process about targeting or engagement.74 Along similar lines, the value of human life may be diminished if machines are in a position to make essentially independent decisions about who should be killed in armed conflict.75 These skeptics also point out that the use of technology that creates little risk for the party using it, but real risk for the fighters and civilians of the user’s enemy is asymmetrical and unfair.76 Finally, skeptics are concerned with the reliability of these systems and that the speed and complexity with which they process information will make it difficult for any human being supervising the system to correct mistakes that might occur.77 Along with these contrary viewpoints, some commentators have pointed out that there are open questions about how autonomous weapon systems will work and that these questions make it difficult to assess in advance whether and to what extent those systems will comply with international law. For example, one of the requirements for the lawful use of autonomous weapon systems is that they have the ability to distinguish lawful from unlawful targets.78 The capacity for making these distinctions might vary enormously from one weapon system’s technology to another, and with the battlefield environment in which a weapon system is used.79 Some algorithms, sensors or analytic capabilities might perform well, others 73

INT’L COMM. OF THE RED CROSS, supra note 65, at 9–10. Sassóli, supra note 68, at 318. See also INT’L COMM. OF THE RED CROSS, supra note 65, at 9. 75 See Sassóli, supra note 68, at 314. 76 Id. at 316. 77 INT’L COMM. OF THE RED CROSS, supra note 65, at 8. 78 Jeffrey S. Thurnher, The Law that Applies to Autonomous Weapon Systems, 17 ASIL INSIGHTS, no. 4 (Jan. 18, 2013), http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2296343. 79 Id. 74

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poorly.80 Moreover, these capacities are meaningful only in the context of particular battlefield environments; the “context and environment in which the weapon system operates play a significant role” in any analysis of whether a weapon system is in compliance with international law.81 C.

Are Autonomous Weapon Systems Inherently Unlawful Under the Existing Rules of International Law for the Use of Weapons?

The debate about the advantages and disadvantages of autonomous weapon systems raises a vital question: are such systems inherently incompatible with the fundamental principles of international law? To put the question another way, is it possible to develop an autonomous weapon system that conforms to the principles requiring a distinction between lawful and unlawful targets, proportionality in the use of deadly force, and taking precautions in attack, as well as to principles regarding the indiscriminate use of deadly force? Some critics of autonomous weapon systems contend that it is not possible to use such systems in a manner consistent with international law. This contention focuses on the proposition that the lawful use of any weapon requires a high degree of moral agency.82 According to this viewpoint, the entire edifice of the international law of war rests on the presumption that the agents doing the fighting are moral agents – that is, agents who can assume moral responsibility for specific actions.83 The international law of war does not merely require that soldiers have the capacity to distinguish a combatant from a noncombatant or calculate whether the damages resulting from a particular use of weapons are proportional to the military advantage to be gained from that use.84 Rather, the law demands moral decision making by actors in every instance.85 This kind of moral accountability for decision-making is essential for the law to

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Id. Id. 82 See Anthony Beavers, Moral Machines and the Threat of Ethical Nihilism, in ROBOT ETHICS: THE ETHICAL AND SOCIAL IMPLICATIONS OF ROBOTICS 333–44 (Patrick Lin et al. eds., 2012). See also Sassóli, supra note 68, at 314–15. 83 See Sassóli, supra note 68, at 314–15. 84 See id. 85 See id. 81

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be able to make its own distinctions between conduct that is morally blameworthy and conduct that is, at the very least, not unlawful. If moral agency is identified as the core principle of the international law of war, these critics of autonomous weapon systems believe that a weapon system is necessarily unlawful if it involves any significant degree of autonomy in a machine’s decision making about how to select a target or about whether to attack that target. These critics suggest that delegating morally significant decisions to machines is a form of “ethical nihilism,” which undermines the essential foundation of the international law of war.86 Thus, even if an autonomous weapon system is capable of making more accurate decisions about targeting and engagement and other crucial matters, its decisions still cannot be morally evaluated, making the international law of war beside the point.87 This problem of moral agency is especially difficult when there is a disparity of technological capacity between combatants in an armed conflict. In other words, the problem of moral agency makes it even harder to apply the principles of the international law of war to a conflict if one side has sophisticated autonomous weapon systems that are making largely independent decisions, while the other side does not. This problem becomes apparent when it is recognized that the validity of the international law of war depends upon the principle of the moral equivalence of soldiers.88 This principle presumes that soldiers on both sides of a conflict are moral agents and that they have enough individual freedom to be held accountable for their actions. After all, if a soldier lacks any freedom at all to make his decisions about how to act, he cannot be held morally responsible for his actions and cannot, therefore, be subject to the law of war. At least in theory, and probably in practice in the very near future, autonomous weapon systems are capable of making many decisions and taking many actions without any meaningful human participation. Therefore, in a conflict between one party that used autonomous weapon systems and another party that did not, the individual combatants would not have moral equivalence. To put it bluntly, one side would be using robots that were not morally 86

See Beavers, supra note 82, at 333–44. R. Sparrow, Robotic Weapons and the Future of War, in NEW WARS AND NEW SOLDIERS: MILITARY ETHICS IN THE CONTEMPORARY WORLD 122–23 (Paolo Tripodi & Jessica Wolfendale eds., 2012). 88 See David R. Mapel, Coerced Moral Agents? Individual Responsibility for Military Service, 6 J. POL. PHIL. 171 (1998). 87

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accountable, while the other was using human beings who would be. In such a conflict, it would be difficult to justify a universal application of the international law of war when, as a practical matter, that rule of law could only be effectively enforced against one side. In this respect, the critics of autonomous weapon systems make a powerful point. They do not argue that it is impossible to adapt the particular requirements of the international law of war to machines. Rather, they contend that it is impossible to apply any form of law to a machine in any way. They emphasize the point that law, by its very nature, is a moral instrument, and it is impossible to apply a moral instrument to a machine. If a fatal auto accident occurs because the brakes malfunctioned on someone’s car, the car is not prosecuted under the criminal law, nor is it even subject to civil liability. The critics of any use of autonomous weapon systems contend that trying to apply the international law of war to an autonomous weapon system would be the functional equivalent of trying to apply the criminal law or the law of negligence to an automobile. This is a powerful critique, but there are two very important problems with it. One of those problems is conceptual. This critique presumes that moral agency is entirely removed from the use of an automated weapon system just because a moral agent is not making every part of the decision about targeting and firing. This presumption is not well founded. Many ordinary weapons include features that remove human beings from each and every decision about the targeting and firing of a weapon. For example, even an automatic rifle or a machine gun makes it impossible for a human being to make a discrete moral decision about each and every round that is fired; the discharge of individual rounds happens too fast for the person controlling the weapon to make a distinct choice about where each round will go. But no one suggests that automatic rifles are not capable of being regulated through the law of war. To be sure, contemporary (not to mention future) autonomous weapon systems are exponentially more complicated than automatic rifles in the number and kind of decisions that are removed, deliberately or effectively, from the direct control of the human beings supervising the machine. But the principle is the same. A weapon is not inherently ungovernable just because a person cannot direct every single action that the weapon takes. Weapons are within the control of human beings as long as those human beings have the capacity to direct the process by which the weapon executes its actions.

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The second problem with the critique is a practical one. Even if one agrees as a matter of theory that autonomous weapon systems cannot be governed by the international law of war, it will be impossible to create and enforce any rule of law prohibiting their use. For one thing, it will be difficult to distinguish between types of weapon systems that are merely “automated” and “autonomous.” Moreover, even if that distinction can be made in a meaningful way, there is no way to prevent combatants from deploying these weapons – especially not when it can be difficult to detect when a weapon system might be operating in an autonomous mode as opposed to an automatic one. It seems more effective to accept autonomous weapons as an inevitable development and to try to regulate them rather than outlaw them altogether. The next question to arise is how to effect that regulation of automated weapon systems. In particular, and especially in light of the important points made about moral agency in the use of weapons, the question arises about how best to regulate autonomous weapons so that their use necessarily involves moral agency. In other words, the crucial question in regulating autonomous weapons is how to assure that there is always a human being involved in making a morally responsible decision about how, when, and where the weapon is deployed. Some have suggested that it would be possible to implement a technological solution to this problem, one in which moral decision making would be automated along with the decisions about targeting and firing. This would involve the creation of an artificially intelligent machine. Creating a weapon system that was capable of making something like a moral judgment would require “strong” artificial intelligence, a level of intelligence that would match or even exceed human intelligence.89 This kind of “strong” artificial intelligence might also have to include intentions, the capacity for reflection, and something like “consciousness.”90 Developing this kind of artificial intelligence would likely require systems to “learn” in a manner very similar to the way that human beings learn through different patterns and experiences.91 89

See ARMIN KRISHNAN, KILLER ROBOTS 46–53 (2009); see also Andreas Matthias, The Responsibility Gap: Ascribing Responsibility for the Actions of Learning Automata, 6 ETHICS & INFO. TECH. 175 (2004). 90 See KRISHNAN, supra note 89, at 46–53. 91 See Matthias, supra note 89, at 175–83.

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One scholar has described what this kind of artificial intelligence might look like, calling this control system an “ethical governor.”92 An ethical governor would involve the imposition of a two-step process that the weapon system would have to complete before firing.93 The first step would require the system to evaluate the information in terms of international humanitarian law and the rules of engagement. If the attack would violate one of those rules, the process stops and the machine cannot fire. If the system determined that there was no violation, it would proceed to the second step, in which it would determine whether attacking the target was required by operational orders.94 The most obvious problem with this kind of artificial intelligence solution to the problem of moral agency is a technical one. Although scholars can imagine what such a solution might look like, there is no indication that anyone is close to realizing it. Indeed, the prospects for developing artificial moral judgment are much more remote than the prospects for developing sophisticated autonomous targeting and firing decisions. More fundamentally, giving autonomous weapon systems artificial moral judgment does not solve the problem of moral agency, even if such a capacity were technologically possible. The point of moral agency is that there must be a human being behind the decision to use force who can be accountable if the decision ends up being contrary to international law. Giving a machine the capacity to engage in moral reasoning does not accomplish that objective. Indeed, it only moves the responsible human being farther back in the process. In the end, the ultimate requirement of international law is that a person be morally accountable for decisions about how to use weapons. The only way to ensure this kind of accountability is to involve a human being in the decision. This does not mean that a human being must control every assessment and action made by an autonomous weapon system; but it does mean that a human being must be “in the loop” or “on the loop” in some

92

RONALD C. ARKIN, GOVERNING LETHAL BEHAVIOR IN AUTONOMOUS ROBOTS 65 (2009). 93 Id. at 65–66. 94 Id. at 183–84.

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way. Anything less would be inconsistent with the requirements of the international law of war. III. PROPOSALS FOR GOING FORWARD Assuring the compliance of autonomous weapon systems with international law demands that there be a system of rules to assure active human participation in the operation of those systems. Those rules will vary with the technology employed in the system, especially the degree of autonomy of which the system is capable in its targeting and firing decisions. Thus, it may not be possible to establish a set of rules in advance that will assure that autonomous weapon systems will continue to comply with the fundamental principles of international law. But the prospect of rapid technological advances means that international law cannot wait until new weapons are developed before making rules to control them. It is incumbent upon the international law community to develop some method for guiding the development of autonomous weapon systems and for establishing a framework for creating and modifying new rules expeditiously. Participants in the debate about autonomous weapons have made different suggestions about what this kind of framework should look like. Some have suggested that it is impossible to develop any autonomous weapon system that will comply with the spirit of international. Therefore, autonomous weapon systems should be banned. Others contend that these systems are like every other weapon system before them in the sense that human beings ultimately control them. On the basis of this contention, these advocates take the position that existing rules will only have to be modestly adapted to meet new the new challenges presented by new weapons. The following section of this paper sets forth some fundamental principles that should be incorporated into any regulatory framework within which autonomous weapon systems will be developed and used into the future. As an initial matter, any regulatory framework will have to be developed on multiple jurisdictional levels. It would, of course, be helpful and necessary to establish standards, principles, and rules at an international level. But a single international treaty or convention would not be enough to assure compliance because the development of weapon systems is a highly decentralized process, in both a geographic and technological sense. In other words, new technologies for autonomous weapon systems can 89


come from any part of the world or from any part of the scientific community, even those parts that are not directly concerned with weapons development. A single international agreement would not have influence on every geographic and scientific community where developments might occur. Consequently, it would be necessary to have a multilayered framework for controlling the development and use of autonomous weapon systems. Even if a single international agreement would not be enough, in itself, the effective control of autonomous weapon systems must begin with the implementation of such an agreement. At the core of such an agreement would be the principle that autonomous weapon systems are to be governed by the existing rules of warfare, both the laws of armed conflict and the principles of international human rights.95 According to one scholar, this kind of international agreement would “include some form of interpretative application of the law of armed conflict to commanders deploying autonomous systems, explaining what information such commanders must have and what questions such commanders must ask before deciding to field the weapons in a given situation.”96 In addition, this agreement would “include rules and guidelines for the development of autonomous systems. Such rules and guidelines could be based not only on legal requirements, but also on policy considerations.”97 This latter category of rules would have to address questions such as whether and in what form autonomous weapon systems would permit human intervention. Should that intervention involve active control or direct supervision of the machine’s decision making, or should it involve a kind of “kill switch” allowing a human being to terminate the system’s operation?98 This agreement need not be a finished product. “A better approach is to reach consensus on some core minimum standards, but at the same time to retain some flexibility for international standards and requirements to evolve as technology evolves.”99 If an international governing standard is capable of evolution and adaptation to specific conditions, it is much more likely to invite compliance by a larger number of national governments. 95

See Anderson et al., supra note 71, at 406–07. Id. at 407. 97 Id. 98 Id. 99 Id. 96

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An international agreement would not be enough, however. As an international consensus developed around an international agreement, and as that international agreement evolved, individual nations would have to develop their own legal frameworks. Like the international agreement, these national rules would have to include an interpretive application of the law of armed conflict and rules for the development of weapon systems.100 These national rules would also be bound up with each nation’s secret military technologies. “Undoubtedly many of the details of national rules and policies will need to remain secret, as they will involve sensitive matters of military capabilities and practices. States should be urged, however, to publish openly their general policies and to promote sharing of best practices.”101 The United States Department of Defense has already implemented a policy that would look very much like this kind of national rule, identifying limits and procedural requirements with regard to research, development and deployment of autonomous weapon systems.102 The final level of a legal framework would include regulatory processes that would apply to both formal military and private sector developers of relevant technologies, including those both expressly applicable to weapon systems and those that could be applicable.103 Military developers “will need clear guidance as to what types of systems they should and should not be developing.”104 Private developers “need to start thinking about methodologies, operating procedures, rules of engagement and other operational and doctrinal level rules for the use of autonomous systems.”105 Although these “local” rules will be influenced from the top down by the existing international and national standards, they will also feed back into the evolution of those higher-order rules.106 In particular, if there are going to be testing and evaluation systems for autonomous weapon systems that are effective on an international basis, there must be collaboration between private-sector weapons developers and military and government officials, “each drawing upon the other in the complicated

100

Id. at 408. Id. 102 See U.S. DEP’T OF DEF., DIRECTIVE 3000.09, supra note 6. 103 Anderson et al., supra note 71, at 409–10. 104 Id. at 408. 105 Id. 106 Id. 101

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dialogue involving international and national interests that generally characterizes the development of international law.”107 In the final analysis: The fundamental principle underlying the gradual development of these standards and rules alongside the evolution of automation technologies, however, should be that what matters is ever greater compliance with the core obligations of the law of armed conflict: necessity, distinction, proportionality and humanity. Whether the actor on the battlefield is a “who” or a “what” is not truly the issue, but rather how well that actor performs according to the law of armed conflict. Debate over standards or rules for automated or autonomous systems should remain scrupulously neutral as between human or machine, and should affirmatively reject any a priori preference for human over machine. . . . The principle of humanity is fundamental, but it refers, not to some idea that humans must operate weapons, but instead to the promotion of means or methods of warfare that best protect humanity within the lawful bounds of war, irrespective of whether the means to that end is human or machine or some combination of the two.108 CONCLUSION Law regulates people, not machines. If the principles of international law are to be preserved as autonomous weapon systems gain increasing use and develop ever-more sophisticated operations, then human beings will have to maintain the ultimate control over the decisions about how, when, and where those weapon systems are deployed. Because it is impractical to attempt to outlaw autonomous weapon systems, international law must develop a method by which it can be assured that human control is always present at a significant level in autonomous weapon systems. That method must include international and national standards that are constantly evolving along with technology and the changing nature of warfare. In the final analysis, human beings cannot create a set of killer robots and hope 107 108

Id. at 409. Id. at 410–11.

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that those creations will, like the Terminator, eventually conform themselves to established moral principles. The only way to assure that autonomous weapon systems conform to law and morality is for human beings to direct them.

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Trinity Law School Law Review - Spring 2016  
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