Note

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

This Note brings novel historical evidence to bear on the question of whether religious exemptions from neutral, generally applicable laws are compelled by the First Amendment. In the wake of the Supreme Court’s decision in Smith (1990), a robust scholarship on relevant historical practice has emerged on both sides of the issue. Those in favor of religious exemptions argue that history supports their position because (1) the period after ratification was marked by extensive religious freedom and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.

This Note shows how recently uncovered evidence about the disestablishment regulation of religious institutions, especially the proliferation of the corporate form, undermines both of these propositions. Religious freedom in the period after ratification was sought through government regulation, not through exemption, and early state governments were hardly limited in their invasions into church domain. An accurate history matters here. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence and the addition of Justices committed to constitutional interpretation centered on historical meaning indicate that the history of free exercise during the Founding era may prove decisive the next time that the Court considers the issue of religious exemption.

Introduction

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place.1 1.See generally Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (recounting the history of Father Kohlmann’s case at length).Show More One of his parishioners, James Keating, had reported a theft of jewelry to the police.2 2.William Sampson, The Catholic Question in America 5 (N.Y., Edward Gillespy 1813).Show More Later, Keating withdrew his complaint after his property was returned.3 3.Id.Show More Keating, out of fear of being arrested, admitted that Father Kohlmann arranged the return of his stolen goods.4 4.Id.Show More Based on other evidence, two immigrants who were members of St. Peter’s were indicted as receivers of the stolen property, and Father Kohlmann was called as a witness to identify those whom he had convinced to return the stolen jewelry.5 5.Id. at 5–6.Show More The priest had a choice: refuse to testify and be jailed, or reveal the names of his penitent parishioners and, in his own words, “become a traitor to my church, to my sacred ministry and to my God.”6 6.Id. at 9; Walsh, supra note 1, at 21.Show More A lower state court found that the choice Father Kohlmann had been put to was untenable. It held that an exemption from the evidentiary requirements of the courtroom was mandated by the New York Constitution’s religious free exercise provision.7 7.SeeSampson, supra note 2, at 108–14.Show More

As the first state court decision to require an exemption on the basis of free exercise,8 8.See Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence, 80 Ind. L.J. 1037, 1038 n.4 (2005).Show More Father Kohlmann’s case—known as People v. Philips—has become a popular object of study.9 9.See Walsh, supra note 1; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410–12 (1990).Show More For those who believe that the Federal Constitution’s Free Exercise Clause requires similar exemptions, Father Kohlmann’s case is evidence that early state practices were consonant with a pro-exemption interpretation of the First Amendment.10 10.Walsh, supra note 1, at 2, 95; McConnell, supra note 9, at 1410–12.Show More Recent scholarship calls the case “the first constitutional victory for religious freedom,” and argues that this lower state court decision belongs “at the historical center of judicial and scholarly free exercise discourse.”11 11.Walsh, supra note 1, at 1–2.Show More That history, according to those in favor of exemptions, was characterized by an “Expansive Conception of Religious Freedom,” one that emerged in the context of a limited American government that stayed in its lane, out of the way of religion.12 12.McConnell, supra note 9, at 1436; see also infra Section II.A (summarizing the pro-exemption view of the historical record).Show More

But the story of Father Kohlmann’s Scylla and Charybdis, and of this rare13 13.McConnell notes that there was little litigation over early religion clauses in either the state or Federal Constitutions. See McConnell, supra note 9, at 1503.Show More early litigation, central to the historical case for free exercise exemptions, has been read in isolation. A fuller assessment of the nature of the religious freedom that New York recognized in 1813 requires considering not only Father Kohlmann’s exemption but also the laws that his church was subject to at the time: onerous and invasive state regulations from which no exemption was sought or given. In 1813, St. Peter’s Church, like others in New York, was governed by a board of trustees.14 14.SeeWalsh, supra note 1, at 21.Show More These lay members of the church were vested with power from the state and controlled church property and decision making.15 15.See Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States, 1784–1932, at 53–54 (1933).Show More As the earliest Catholic Church in New York City, St. Peter’s had elected to incorporate under state law in 1785, just one year after the state extended the power to incorporate to Catholic churches.16 16.See id. at 54.Show More In 1813, the same year that Father Kohlmann won his exemption, the state updated its corporate law governing religious institutions and placed the control of church property, minister salaries, “rules and orders for managing the temporal affairs” of the church, and even the power to break ground in cemeteries firmly in the hands of the majority of lay trustees.17 17.See An Act to Provide for the Incorporation of Religious Societies, ch. 60, §§ 3–4, 8, 2 N.Y. Sess. Laws 212, 214–15, 217 (1813).Show More

In light of the requirements of New York’s corporate law, the Catholic Church which Father Kohlmann led was not only his to control. As Walsh points out, while the district attorney sought to drop the prosecution, it was the church’s lay trustees, not its priest, who insisted that the case be brought to trial, hoping to publicly secure the priest-penitent privilege in New York.18 18.SeeWalsh, supra note 1, at 21.Show More Contrary to Catholic ideology, then, St. Peter’s temporal property and direction were held by the church’s lay trustees, backed and governed by the state’s corporate laws.19 19.See Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 347–50 (2014) (documenting the disruptive quality of disestablishment corporate law for Catholicism in America).Show More These legal mechanisms controlling religious institutions in New York were typical of regulations across the country, most of them passed during the era that Sarah Gordon calls the “First Disestablishment.”20 20.Id. at 307, 311–12. Gordon dates the First Disestablishment as occurring between 1786 and 1833. Id. at 310.Show More Sounding in corporate law, these regulations restricted church property, interfered with internal church governance, and shaped what “religious freedom” meant in New York and in the early United States.21 21.Id. at 321–24.Show More Yet this history has thus far been largely ignored, both by those championing People v. Philips as a high watermark of religious freedom and, more generally, in the fierce debate over the history of the Free Exercise Clause.22 22.See infra Section II.D.Show More This Note refracts that debate through the lens of disestablishment regulation of religious institutions. In doing so, it posits that state interventions into religion during the First Disestablishment undermine the historical case for religious exemptions.

It is important to precisely identify the constitutional issue at play, one that remains hotly contested some 200 years after Father Kohlmann took confession. The question is this: Where a neutral, generally applicable law imposes an incidental burden on an individual’s free exercise of religion, does the Constitution mandate an exemption?23 23.This framing of the issue reflects the Supreme Court’s most recent significant re-appraisal. See Emp. Div. v. Smith, 494 U.S. 872, 883–89 (1990).Show More The center of the exemptions debate thus turns on the standard of judicial review applicable to incidental burdens on religion.24 24.See Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J.L. & Religion 139, 141–42 (2009).Show More Must the government offer merely some form of rational basis to defend a generally applicable law against a claim of exemption, or does the government need to demonstrate that it has a compelling interest and has narrowly tailored the statute at issue?25 25.Compare Smith, 494 U.S. at 879 (asserting that the right to free exercise does not reach a “valid and neutral law of general applicability”), with id.at 894–95 (O’Connor, J., concurring in judgment) (citing precedent that requires the government to justify a substantial burden on free exercise with a “compelling state interest and by means narrowly tailored to achieve that interest”).Show More Those in favor of exemptions argue that the government must do the latter in order to impose incidental burdens on religious free exercise.26 26.See, e.g., Laycock, supra note 24, at 151.Show More Those opposed to exemptions contend that no such showing is required and that neutral and generally applicable laws do not trigger heightened review under the Free Exercise Clause.27 27.See, e.g., Smith, 494 U.S. at 879 (holding that heightened review was not required for a neutral, generally applicable law that imposed an incidental burden on the free exercise of religion); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 936–40 (1992) (arguing that the original understanding and practice under the Free Exercise Clause provides no support for a right to regulatory exemptions).Show More

Since the Supreme Court first encountered the issue of religious exemptions in 1878,28 28.SeeReynolds v. United States, 98 U.S. 145, 166 (1878).Show More the doctrine has evolved between these positions. In contrast to the Court’s Establishment Clause jurisprudence,29 29.Recent Establishment Clause jurisprudence has featured various forms of historical analysis as part of the Court’s decision making. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019) (“The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8–14 (1947) (tracing disestablishment history beginning with immigration from Europe); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–62 (1995) (Thomas, J., concurring) (contextualizing Madison’s Memorial and Remonstrance Against Religious Assessments to argue that the Establishment Clause does not require the government to exclude religious adherents from generally available government subsidies); id. at 868–72 (Souter, J., dissenting) (denying Justice Thomas’ characterization of Madison’s letter).Show More the Court has often ruled on free exercise exemption claims without reference to the history of the First Amendment.30 30.See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1794–95 (2006).Show More However, in the aftermath of Employment Division v. Smith—one of the Court’s most significant and least historically inflected decisions on the issue—a vibrant scholarly debate developed around the history of the Free Exercise Clause, with academics interpreting Founding-era historical sources in order to support their preferred interpretation of the First Amendment.31 31.See infra Part II.Show More Faced with an ambiguous constitutional provision and little legislative history, scholars and Supreme Court Justices have turned to persuasive authority in an attempt to determine whether the Free Exercise Clause at the time of the Founding accorded with, required, or ran against, constitutionally compelled exemptions for religion.

The sources of historical authority relied on in the exemptions debate are numerous, yet recent research on disestablishment regulation of religious institutions has hitherto been ignored. Gordon’s intervention—analyzing state regulation of religious institutions as states removed government support for the church following ratification—casts doubt on two of the premises undergirding the historical case for religious exemptions. Those in favor of constitutionally compelled religious exemptions argue that (1) the period after ratification was marked by an “expansive conception of religious freedom” consonant with constitutionally required exemptions for religious free exercise and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.32 32.See, e.g., McConnell, supra note 9, at 1415, 1436–49 (advancing both of these positions).Show More The history of disestablishment regulations complicates the first of these arguments because, as Gordon argues, religious freedom during disestablishment was sought through government regulation of the church, not through the exemption of religious institutions from the law.33 33.See infra Part III.Show More The proposition that early American government was “limited” is even more seriously undermined by the history of disestablishment, which demonstrates that early state government relations with the church were characterized by invasive state oversight, especially through corporate laws regulating private property and lay governance.34 34.Id.Show More

This limited intervention does not add to Gordon’s impressive recent work on disestablishment history. Instead, this Note draws out the full significance of that history, by showing how disestablishment regulation unsettles the free exercise exemption debate. Gordon framed her intervention in terms of the relationship between religious institutions and individual conscience.35 35.See Gordon, supra note 19, at 311 (“This first system of disestablishment imposed discipline on religious institutions . . . based on concerns for individual conscience and lay control.”).Show More Yet the story that she uncovered—of religious liberty sought in and through state regulation—is also powerful evidence of the nature of the Free Exercise Clause after ratification. A full account of the history matters for two reasons. On the one hand, disestablishment regulations of religious institutions bear on how we think about the rights of religious individuals and institutions.36 36.See, e.g., Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 64 (4th ed. 2016) (a leading textbook on the subject).Show More On the other, this history may well shape the Supreme Court’s future free exercise jurisprudence. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence,37 37.See supra note 29 and accompanying text.Show More and the addition of Justices committed to constitutional interpretation centered on historical meaning,38 38.There is good reason to believe that Justices Gorsuch, Kavanaugh, and Barrett are open to, if not outright supporters of, historical analysis as a supplement to constitutional interpretation. SeeNeil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905, 906 (2016) (arguing that judges should seek to apply the law by looking to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be”); Tucker Higgins, Read Brett Kavanaugh’s Full Opening Remarks in his Supreme Court Confirmation Hearing, CNBC (Sept. 4, 2018), https://www.cnbc.com/2018/09/04/read-brett-kavanaughs-full-rem­arks-to-the-senate-judiciary-committee.html [https://perma.cc/6QRM-H8K2] (“A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”); Kanter v. Barr, 919 F.3d 437, 453–65 (7th Cir. 2019) (Barrett, J., dissenting) (performing an in-depth historical analysis to conclude that “[h]istory does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” but “it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous”).Show More indicate that the history of free exercise during the Founding era may well prove decisive the next time that the Court considers the issue of religious exemptions.39 39.The Supreme Court has granted certiorari and received merits briefs on the question of whether to overrule Smith. As of this Note’s writing, the Court’s opinion has not been released. Petition for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123); Brief for Petitioners at 37, Fulton, 140 S. Ct. 1104 (No. 19-123); Brief for City Respondents at 47, Fulton, 140 S. Ct. 1104 (No. 19-123); see also Micah Schwartzman, Richard Schragger, & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/­2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/42ED-WR­NT] (discussing the new conservative majority’s likely path in expanding free exercise rights). And four of the Court’s conservative Justices have signaled an intent to reverse Smith. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (signaling an intent to “revisit” Smith); Howard Gillman & Erwin Chermerinsky, The Weaponization of the Free Exercise Clause, Atlantic, (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/3GJZ-EEVN] (arguing that “the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith”); Eugene Volokh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Volokh Conspiracy (Jan. 1, 2019), https://reason.com/2019/01/22/will-the-court-read-the-free-exercise-cl/ [https://perma.cc/7LDL-W788] (observing that the statement denying certiorari in Bremerton suggested the four Justices’ willingness to overrule Smith and that Justice Breyer had echoed this sentiment in City of Boerne v. Flores, 521 U.S. 507 (1997)).Show More

The first Part of this Note summarizes the three major phases of free exercise doctrine in the Supreme Court, with particular attention to the Court’s irregular engagement with historical evidence. Second, the extant scholarship on the history of free exercise is summarized, along with its influence in the Supreme Court. The Note’s third Part considers recent research on early state regulations applicable to religious institutions during the First Disestablishment. This Part shows how disestablishment history qualifies claims about expansive religious freedom and “limited” government during the Founding era. This Part also considers three objections to the use of disestablishment history to interpret the meaning of the Constitution’s Free Exercise Clause. The Note concludes by reflecting on the importance of the exemptions issue during the Founding era and today, the stakes of historical analysis for the Supreme Court’s Religion Clauses jurisprudence, and the potential for a historically inflected reappraisal of Free Exercise Clause doctrine.

Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern.

This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties’ religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the “objective” approach, “the reasonable believer” test, and the “case-by-case” method. Fundamental Free Exercise and Establishment Clause problems with the “objective” and “reasonable believer” approaches demonstrate the superiority of a “case-by-case” analysis. That any accommodation is required, however, should give pause.

It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court’s aggressive exemption free exercise jurisprudence.

Introduction

Marbury v. Madison teaches us that the judicial branch has the power to review the constitutionality of governmental acts.1 1.5 U.S. (1 Cranch) 137, 177–78 (1803).Show More This power of review comes up most frequently when congressional or state legislative acts run afoul of the Constitution. But what happens when someone claims that the common law, a product of judges and purportedly applied uniformly to all citizens, burdens a constitutional right? Can people demand exemptions from a tort standard solely because of a claim of individualized burden? Consider the following scenarios:

In May 1991,2 2.Verdict Form, Williams v. Bright, 632 N.Y.S.2d 760 (N.Y. Sup. Ct. 1995) (No. 17261/92), 1994 WL 16200195.Show More Gwendolyn Robbins was traveling through upstate New York with her father when he swerved their vehicle off the road and into a culvert at sixty-five miles per hour. Mrs. Robbins, severely injured in the crash, was rushed to a local hospital for surgery. Once there, however, she learned that proper treatment would require blood transfusions. She refused on grounds that it would violate her religious beliefs as a Jehovah’s Witness. In the face of increased medical expenses and a reduced quality of life, Mrs. Robbins remained steadfast in refusing surgery. She later pressed for damages and the cost of continuing care in a negligence suit against the owner of the car.3 3.Facts consolidated from trial and appellate court decisions. Williams v. Bright, 632 N.Y.S.2d 760, 762–63 (N.Y. Sup. Ct. 1995), rev’d in part, 658 N.Y.S.2d 910, 911 (N.Y. App. Div. 1997).Show More

In August 1963, sixteen-year-old Ruth Eider was in a chairlift traveling down a mountain when the operator negligently stopped the lift. It was late afternoon and she and her nineteen-year-old male companion were stuck. After fifteen minutes of yelling, it became clear that no one was coming to help. Raised in an ultra-orthodox Jewish household, Ms. Eider had been taught that spending the night with a man in a place inaccessible to a third party was an overwhelming moral sin. Facing this prospect, Ms. Eider jumped from the lift. She eventually sued the State of New York (the operator of the mountain) for the cost of the injuries sustained in the jump.4 4.Friedman v. State, 282 N.Y.S.2d 858, 859–63 (N.Y. Ct. Cl. 1967), modified, 297 N.Y.S.2d 850 (N.Y. App. Div. 1969).Show More

In March 2006, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Shortly thereafter, his father scheduled a funeral to commemorate his life for close friends and family. Members of the Westboro Baptist Church, a fundamentalist Christian sect, used this funeral as an opportunity to highlight their condemnation of homosexuality. They protested outside the ceremony carrying signs with slogans like “Thank God for dead soldiers,” “God hates you,” and “Semper fi fags” to spread their message. Mr. Snyder’s father sued the Church for intentional infliction of emotional distress (“IIED”). In response, the Westboro Baptist Church claimed complete immunity from tort liability on both free speech and free exercise of religion grounds.5 5.Snyder v. Phelps, 533 F. Supp. 2d 567, 569–70 (D. Md. 2008), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). The district court dismissed the free exercise claim, distinguishing statutory and criminal restrictions on religious practice from other types of restrictions. Id. at 579. This Note suggests that the case law and logic of free exercise jurisprudence do not support such a distinction.Show More

Although these three incidents, separated by over four decades, would seem to have little in common, the tort suits they spawned had to grapple with a question that has beguiled courts for years: In determining culpability, to what extent can tort law be modified to accommodate the strongly held religious beliefs of a party?6 6.The first court to address this question was the Supreme Court of Errors of Connecticut in Lange v. Hoyt,159 A. 575, 577–78 (Conn. 1932). Understanding the difficulty of the issues raised, “[n]ot surprisingly, the Connecticut trial court ducked the issue and the Connecticut Supreme Court (of Errors as it then was) affirmed the ducking” by allowing the jury to consider that the plaintiff’s religious beliefs were widely held in determining reasonableness. Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 47 (1985). Modern courts have similarly struggled with this question. SeeMunn v. S. Health Plan, Inc., 719 F. Supp. 525, 526 (N.D. Miss. 1989) (“This wrongful death case [involving a decedent who refused a blood transfusion on religious grounds] presents some of the most difficult questions which this court has ever been asked to resolve.”); Rozewicz v. N.Y. City Health & Hosps. Corp., 656 N.Y.S.2d 593, 594 (N.Y. Sup. Ct. 1997) (“[T]he issues before me dealing with the deceased’s refusal to accept blood transfusions raise[] some of the most difficult legal issues I have been faced with during my years on the bench.”).Show More That is, when, if ever, can religion be a valid justification for ignoring the purportedly generally applicable standards of the common law?

At first glance, the answer to that question would seem to be never. The basic command of tort law is to “be reasonable.”7 7.“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283 (Am. L. Inst. 1965).Show More Reasonableness permeates the legal system in one form or another, a lodestar which guides court decision-making,8 8.See Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2135–46 (2015) (detailing the many permutations of reasonableness).Show More and is determined “objectively.”9 9.See Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (C.P.) (discussing the importance of an objective standard of reasonableness and rejecting inquiry into subjective motivation).Show More This would appear to foreclose any consideration of parties’ subjective religious motivation. Over the years, however, a number of courts and commentators have realized that the answer is not that simple, particularly when “objective” reasonableness conflicts with the Religion Clauses of the First Amendment.10 10.Seesupra note 6; see, e.g., Jeremy Pomeroy, Note, Reason, Religion, and Avoidable Consequences: When Faith and the Duty To Mitigate Collide, 67 N.Y.U. L. Rev. 1111 (1992); Note, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978) [hereinafter Medical Care].Show More In response, these courts and commentators have wrestled with a framework for accommodating religious belief in reasonableness calculations. Most of these approaches, however, arose well before the Supreme Court’s modern free exercise jurisprudence came into focus in Employment Division v. Smith.11 11.Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990).Show More Consequently, they do not deal with current developments in First Amendment law. Furthermore, they fail to grapple with the serious Establishment Clause concerns raised by exempting individuals from complying with a reasonableness standard.12 12.See Anne C. Loomis, Thou Shalt Take Thy Victim as Thou Findest Him: Religious Conviction as a Pre-Existing State Not Subject to the Avoidable Consequences Doctrine, 14 Geo. Mason L. Rev. 473, 505–09 (2007) (purporting to address Establishment Clause concerns but failing to consider the full gamut outlined infra in Part II).Show More In our common law system, which is built upon a similar edifice of individualized reasonableness determinations, these considerations could reverberate broadly. This Note will attempt to address these issues.

Part I will argue that the Supreme Court’s First Amendment jurisprudence after Smith not only allows, but requires, religious accommodation where application of the reasonable person standard burdens sincerely held religious belief. In reaching this conclusion, this Part will first show that the reasonable person standard lacks the neutrality and general applicability required under Smith and its Free Exercise Clause companion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.13 13.508 U.S. 520 (1993).Show More This Part will then demonstrate that a lack of neutrality and general applicability can and will undermine any compelling interest the state could put forth in application. Thus, a religious adjustment is necessary.

Part II will discuss the three approaches that courts have taken to adjust the reasonable person standard for sincerely held religious belief. It will first address the “objective” test, which purports to reject consideration of subjective thought and prohibits courts from including religious belief in reasonableness determinations. The requirement of some accommodation under Smith and Lukumi makes this approach unworkable. This Part will then address the “reasonable believer” test, in which courts treat religion as an immutable characteristic of the party, similar to the “eggshell skull” rule in torts. It will reject this test on both Free Exercise and Establishment Clause grounds. Finally, this Part will discuss the “case-by-case” approach in which religion is one of many equally weighted factors used to determine the reasonableness of an action. It will contend that this approach alleviates some of the Free Exercise and Establishment Clause problems of the “reasonable believer” standard and is the best option given the demands of the Supreme Court’s First Amendment jurisprudence.

In the admittedly small arena of “failure to mitigate damages” cases, this outcome may seem palatable and even appropriate. But the implications of finding a required adjustment are far-reaching. If something as generic as a reasonableness standard is susceptible to required religious accommodation, what other purportedly generally applicable laws or standards are similarly vulnerable? Take, for example, Snyder v. Phelps, the Westboro Baptist Church case discussed above.14 14.See supra text accompanying note 5.Show More Although the Supreme Court decided the issue in the Church’s favor on free speech grounds,15 15.Snyder v. Phelps, 562 U.S. 443, 461 (2011).Show More suppose, instead, that it had tackled the free exercise question.

Should the tort of IIED be subject to required religious accommodation because it has exemptions for speech protected under the First Amendment’s Free Speech Clause? An aggressive exemption strategy to religious accommodation under Smith and Lukumi may suggest that the answer is yes. That outcome seems unsettling. It also begs for clarity on what laws or standards, if any, are so fundamental as to avoid required religious accommodation. This Note uses the finding of a required religious accommodation to the reasonable person standard to suggest the fundamental inadequacy of the Court’s aggressive exemption jurisprudence under the Free Exercise Clause.

The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act

From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society.

To provide redress for the victims of Nazi looting, the United States and the international community adopted the Washington Principles in 1998—a set of guidelines intended to promote a “just and fair” solution for claims over Nazi-looted art. Unfortunately, despite this commitment, lawsuits to recover stolen artwork are often barred by time-based defenses.

In 2016, Congress passed the Holocaust Expropriated Art Recovery Act (“HEAR Act”) to promote resolution on the merits by effectively removing the statute of limitations as an affirmative defense. Surprisingly, however, Congress left the doctrine of laches available, thereby frustrating the effectiveness and stated purpose of the HEAR Act. The doctrine of laches bars a claim upon a showing that the claimant unreasonably delayed in bringing suit, and that the delay caused the artwork’s possessor to suffer prejudice. Yet because lawsuits for restitution of Nazi-looted artwork have only recently become viable, delay and the resulting prejudice—taking the form of lost evidence—are inherent in these claims. The doctrine of laches thereby undermines resolution on the merits, which is antithetical to the HEAR Act’s putative goals.

This Note argues that for the HEAR Act to provide the relief it ostensibly envisions, the doctrine of laches should be precluded as an available defense. Alternatively, the ability to assert the defense should be restricted to those parties who acquired contested artwork in true good faith. By revising the HEAR Act accordingly, a “just and fair” solution can be achieved.

Introduction

The destruction of Jewish cultural and economic identity was an integral component of the Nazi regime’s genocidal campaign.1 1.Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016).Show More The Nazis partly carried out this aim through the systematic looting of artwork, stripping the Jewish population of their possessions and casting them as outsiders.2 2.See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I.Show More The scale of the theft highlights its importance to the Nazis—in 1948, the United States estimated that it had found approximately 10.7 million looted art and cultural objects.3 3.Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report].Show More The United States and European governments set up restitution programs,4 4.Id. at SR–137 to SR–139.Show More though these efforts soon gave way to a focus on the Cold War.5 5.See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017).Show More After the Soviet Union fell, however, interest re-emerged in the Holocaust, as Allied governments declassified archives and scholars devoted attention to the unresolved problem of Nazi-looted art.6 6.See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”).Show More In 1998, at the Washington Conference on Holocaust-Era Assets, the representatives of forty-four countries, including the United States, agreed to a set of guidelines known as the Washington Principles.7 7.See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003).Show More This document set forth the parameters for countries to work within their own legal systems to promote the “just and fair” resolution of claims for Nazi-looted art.8 8.Washington Principles, supra note 7, at 972 (Principles VIII & IX).Show More Since the adoption of the Washington Principles, United States courts have heard a growing number of cases seeking the restitution of artwork stolen by the Nazis.9 9.See infra Part II.Show More

Despite the United States’ commitment to the Washington Principles, time-based defenses like the statute of limitations and its equitable counterpart, the doctrine of laches, have been used to bar many of these claims.10 10.See id.Show More A laches defense is intended to prevent a claimant from delaying in asserting her rights in a way that—in the context of this Note—harms the party in possession of disputed artwork.11 11.The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)).Show More Recognizing the obstacles posed by time-based defenses, Congress acted in 2016 to reduce the difficulties descendants face in obtaining restitution.12 12.See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526.Show More The resulting legislation, the Holocaust Expropriated Art Recovery Act (“HEAR Act”), set a federal statute of limitations for actions seeking the recovery of Nazi-looted art.13 13.Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002).Show More This six-year limitations period starts running when a claimant gains knowledge of the “identity and location of the artwork” and “a possessory interest” in the artwork.14 14.Holocaust Expropriated Art Recovery Act § 5(a).Show More However, the HEAR Act’s final text did not address laches.15 15.See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision.Show More Legislative history suggests that Congress intended for the defense to remain available. The initial draft explicitly precluded the doctrine of laches,16 16.S. 2763, 114th Cong. § 5(a) (2016).Show More but the enacted bill removed this language.17 17.Holocaust Expropriated Art Recovery Act § 5(a).Show More Congress knew that the change would restrict the HEAR Act’s impact and allow laches to frustrate the efforts of the very families the Act purported to help.18 18.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.).Show More

This Note focuses on Congress’s decision to leave laches intact—along with its consequences for claimants—and two possible revisions to the HEAR Act. By making the statute of limitations a non-issue in many disputes, Congress sought to ensure that these cases would be decided on the merits, thereby increasing the availability of restitution. Leaving laches intact, however, undermines that goal. A successful laches defense requires the party in possession19 19.The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012).Show More of the artwork to show: (1) that the claimant unreasonably delayed in bringing suit against the possessor, and (2) that the delay caused prejudice to the possessor.20 20.Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)).Show More This defense is frequently easy for possessors of Nazi-looted art to demonstrate. These claims are inevitably delayed because the world largely treated art restitution as “a closed chapter” for half a century after World War II.21 21.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.).Show More Moreover, possessors can show prejudice based on lost evidence, as potential witnesses have passed away in the intervening decades. Even though such circumstances are inherent to these claims, courts have held that the doctrine of laches should prevent resolution on the merits.

Since passage of the HEAR Act, the tension between the legislation’s purpose to grant relief and the availability of laches has played out in two cases. The first, Zuckerman v. Metropolitan Museum of Art, in the Second Circuit, demonstrates how a laches defense can decide a dispute otherwise capable of resolution on the merits.22 22.928 F.3d 186, 193–94 (2d Cir. 2019).Show More The second, Reif v. Nagy, in New York state courts, shows how an expansive, albeit incorrect, purposive reading of the HEAR Act can sidestep laches and facilitate relief on the merits.23 23.80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act).Show More Recently, the appellants in Zuckerman had their petition for certiorari to the Supreme Court denied,24 24.Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.).Show More meaning that the availability of laches under the HEAR Act is now binding precedent in the Second Circuit. Reif, on the other hand, signals that the New York state courts may prove to be a more hospitable forum for claimants going forward.

It is not too late to aid survivors and their families in their quest for justice. Over a year after passing the HEAR Act, Congress enacted the Justice for Uncompensated Survivors Today (JUST) Act of 2017.25 25.Pub. L. No. 115-171, 132 Stat. 1288 (2018).Show More The JUST Act directs the State Department to report on the steps taken by countries that, like the United States, have themselves committed to promoting restitution for Holocaust survivors.26 26.Id. § 2(b).Show More And in early 2020, New York Governor Andrew Cuomo announced a conference “aimed at improving the State’s ability to help recover works of art and other property lost due to Nazi persecution.”27 27.Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86].Show More Congress should build on the political will in this area of bipartisan consensus28 28.Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS].Show More and modify the HEAR Act to ensure that claimants are able to resolve their claims on the merits.

Part I of this Note provides a brief history of Nazi looting as well as a history of the Washington Principles and other international and domestic initiatives prior to the HEAR Act. This background illustrates the moral and legal issues that Congress designed the Act to address. The remainder of Part I traces the HEAR Act’s legislative history and the explanations Congress did and did not offer for setting a statute of limitations while leaving laches untouched.

Part II then discusses a sample of the case law in the state and federal courts of New York, the international art capital of the world. Courts in New York have had frequent occasion to consider the application of laches to claims for artwork looted during World War II due to the state’s “demand and refusal” rule.29 29.See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658.Show More

Part III presents the argument briefly described above—that application of the doctrine of laches to claims for restitution of Nazi-looted art is irreconcilable with the HEAR Act and the Washington Principles. Part III then proposes two solutions. The first, and preferable, solution is to preclude a laches defense entirely, faithful to the first draft of the HEAR Act. This would guarantee that the Act fulfills the Washington Principles’ call to promote “a just and fair” solution.30 30.Washington Principles, supra note 7, at 792 (Principles XIII & IX).Show More As a more moderate solution, courts should be directed to inquire into whether a possessor sufficiently investigated title to contested artwork. This will allow courts to determine whether current possessors acquired artwork in true good faith, or whether they have dealt in Nazi-looted art when problems with a piece’s provenance31 31.“Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work.Show More should have been apparent. Only when a possessor exercised appropriate diligence would a laches defense be available.

  1. * J.D., University of Virginia School of Law, 2020. I am grateful to Professor Julia Mahoney for her guidance throughout the drafting of this Note. Thank you to Samantha Caravello, Read Mills, and Anna Rennich for their thoughtful comments on earlier versions. I also owe thanks to the members of the Virginia Law Review, especially Andrew Kintner, for diligent editing and insightful feedback. All errors are my own. ↑
  2. Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016). ↑
  3. See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I. ↑
  4. Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report]. ↑
  5. Id. at SR–137 to SR–139. ↑
  6. See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017). ↑
  7. See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”). ↑
  8. See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003). ↑
  9. Washington Principles, supra note 7, at 972 (Principles VIII & IX). ↑
  10. See infra Part II. ↑
  11. See id. ↑
  12. The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)). ↑
  13. See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526. ↑
  14. Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002). ↑
  15. Holocaust Expropriated Art Recovery Act § 5(a). ↑
  16. See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision. ↑
  17. S. 2763, 114th Cong. § 5(a) (2016). ↑
  18. Holocaust Expropriated Art Recovery Act § 5(a). ↑
  19. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.). ↑
  20. The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012). ↑
  21. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)). ↑
  22. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.). ↑
  23. 928 F.3d 186, 193–94 (2d Cir. 2019). ↑
  24. 80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act). ↑
  25. Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.). ↑
  26. Pub. L. No. 115-171, 132 Stat. 1288 (2018). ↑
  27. Id. § 2(b). ↑
  28. Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86]. ↑
  29. Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS]. ↑
  30. See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658. ↑
  31. Washington Principles, supra note 7, at 792 (Principles XIII & IX). ↑
  32. “Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work. ↑
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