Sixth Circuit Rules in Favor of Christian University Student in Religious Discrimination Case

A Sixth Circuit panel has ruled unanimously in favor of a Christian university student who claims that Eastern Michigan University expelled her from its graduate counseling program because of her religious beliefs. Julea Ward told the university that as a Christian she could not affirm same-sex relationships (as well as non-marital heterosexual relationships); when a client in her counseling practicum sought counseling about a same-sex relationship, Ward asked that the client be referred to a different counselor. As a result, the university commenced a disciplinary proceeding and eventually expelled her from the program, ostensibly because the university had a blanket policy against students referring clients to other counselors. When Ward sued the university under title VII, claiming the university had dismissed her in violation of her free speech and free exercise rights, the district court granted summary judgment for the university.

Today, the Sixth Circuit reversed. Writing for the panel, Judge Sutton held that a jury could reasonably find that the “no referral” policy was merely a pretext the university had manufactured after the fact. Even worse, a jury could find that it was a poor pretext: there was evidence that the university allowed students to refer clients to other counselors for certain “secular” reasons.  A jury could thus find that the no-referrals rule was not neutral with respect to religion; as a result, under Employment Division v. Smith, the university would have to show a compelling interest to justify the rule – which, on the record, seemed very unlikely. The Sixth Circuit distinguished last month’s decision by the Eleventh Circuit in Keeton v. Anderson Wiley, which CLR Forum discussed here. Today’s case is Ward v. Polite (6th Cir., slip op. Jan. 27, 2012).

Rancor Follows Decision Striking Down School Prayer

Here is an interesting story about the acute social rancor that has followed a U.S. District Court’s decision to hold unconstitutional the display of a prayer in a Rhode Island public school auditorium.  The prayer, written by a seventh grader some 50 years ago, said this:

School Prayer.

Our Heavenly Father, Grant us each day the desire to do our best, to grow mentally and morally as well as physically, to be kind and helpful to our classmates and teachers, to be honest with ourselves as well as with others.  Help us to be good sports and smile when we lose as well as when we win.  Teach us the value of true friendship.  Help us always to conduct ourselves so as to bring credit to Cranston High School West.  Amen.

An atheist student sued to eliminate the prayer as a violation of the Establishment Clause and the court agreed.  Whether the town will appeal is unclear.  The story reports that State Representative Peter Palumbo has said some very harsh things about the atheist student plaintiff.  Justified or not, the anger that he expresses and which the town obviously feels is properly directed against the court.

God’s Bureaucrat

In the pre-modern era, political leaders frequently had themselves depicted in church art. Romanesque churches have mosaics of emperors and senators; Renaissance princes had themselves depicted in altarpieces. It’s unusual to see this kind of thing nowadays, but the practice may be making a comeback in some places. Interfax reports this week that a regional governor in Kazakhstan had himself painted in a church fresco, among a group of people welcoming Christ (left). Facing criticism, the governor has denied asking for the depiction and says he wants it erased. It does look a bit incongruous. After all, those Roman emperors in the old mosaics – they actually wore togas in real life, too.

New Journal: “Secularism and Nonreligion”

Secularism and Nonreligion, “the world’s first journal dedicated to the investigation of secularism and nonreligion in all forms,” has commenced publication this month. The editors’ description of the new journal’s focus and scope follows:

Secularism and Nonreligion is an interdisciplinary journal published with the aim of advancing research on various aspects of ‘the secular.’ The journal is interested in contributions from primarily social scientific disciplines, including: psychology, sociology, political science, women’s studies, economics, geography, demography, anthropology, public health, and religious studies. Contributions from history, neuroscience, computer science, biology, philosophy, and medicine will also be considered. Articles published in the journal focus on the secular at one of three levels: the micro or individual level, the meso or institutional level, or the macro or national and international levels. Articles explore all aspects of what it means to be secular at any of the above levels, what the lives of nonreligious individuals are like, and the interactions between secularity and other aspects of the world. Articles also explore the ideology and philosophy of the secular or secularism.

The Costa Concordia, Admiralty, & Karl Barth

The CLR Forum has not posted on the Costa Concordia tragedy—understandably, as its law and religion content is not overt.  Nevertheless, the inevitability of lawsuits arising from the cruise ship’s grounding raises a host of questions related to admiralty and contractual forum selection.  (For example, see this post on Cruise Law News, a site specializing in such issues, and this article from CNN.)

The Costa Concordia grounding’s historical-religious content is similarly relevant.  Printed on  blue cardstock in 1912, a sermon by a young minister and then-budding theological giant named Karl Barth elaborates its significance.

Please follow the jump for more.

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Classic Revisited: Smith, “Foreordained Failure”

Today’s classic revisited is Steven D. Smith’s book, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).  If I were constructing a top all-time list of law and religion works, this book would surely make my top 3.  The book is a classic in the law and religion canon because it is really the first explicitly to resist the notion that the religion clauses were meant to protect any single principle or value at all.  They instead reflected a compromise among people who thought very differently about the proper relationship of church and state.  The book is partially historical and partially theoretical; the latter sections examine the possibility of an “unprincipled” approach to religious liberty, and what it would look like.

As with all of Smith’s work, the book is a model of clear, accessible, and always insightful writing.  If you are looking for a lucid book which will appeal equally to people who have studied these issues and a more generally educated audience, this is it.  More than this, Smith’s book has inspired a rising generation of new writers (I count myself in this group) to explore themes which he was the first to illuminate.  Here’s just a brief portion (at 11-12) to give you a rough feel for the book’s quality:

[W]e might acknowledge that there is no single or self-subsisting “principle” of religious freedom; there is only a host of individuals with a host of different opinions about how much and what kind of scope government ought to give to the exercise of religious beliefs and practices.  Aquinas’s views on this subject were different from Cromwell’s; Cromwell’s were different from Madison’s.  But all these figures believed in some version of religious freedom; they believed, that is, in giving some scope to divergent religious beliefs or practices.  And it is simply misleading to suppose that there is a univocal principle of religious freedom, hovering in some Platonic realm independent of these different opinions — a principle of which the opinions of Aquinas, Cromwell, and Madison were more or less faithful copies.

It is important to clarify how this more pluralistic approach to the question differs from an approach that at least tacitly conceives of religious freedom as a unitary principle or singular ideal.  In acknowledging a variety of versions of religious freedom, we can still insist that some opinions about the proper scope of religious freedom are more attractive, or more rationally defensible, than others.  I might believe, for example, that the arguments for the positions I take on the issues of religious freedom are more persuasive than the arguments for the positions taken by Cromwell — or Justice Brennan.  This disagreement, however, merely entails the familiar sort of debate about whose arguments are stronger or whose position is more attactive or plausible.  There is little to be gained by trying to frame the debate as one about who really perceives the true meaning of “the principle of religious freedom.”  Consequently, although I might assert that those who disagree with me are “wrong” or that their arguments are “weak” or “implausible,” I would have no justification at all for saying, for example, that they have failed to understand the very principle that they purport to respect or that in professing to respect that principle they are being thoughtless or hypocritical.

Likewise, a more pluralistic approach to religious freedom would not prevent us from discerning in Western history a kind of progress toward the achievement of more complete religious freedom.  This characterization might simply mean that current notions of religious freedom allow greater scope for diverse religious conduct and belief.  It might also mean that we think the reasons supporting current opinions are more plausible than those invoked in behalf of earlier views.  Conversely, it is unnecessary and potentially misleading to say that “the principle” of religious freedom was somehow implicit in but inadequately expressed by earlier positions, or that Western history reflects an ongoing, ever more perfect realization of the principle of religious freedom.