Berger on Religious Liberty in the United States

Peter Berger’s column from a couple of days ago is (as always) worth a read (agree or disagree).  The comparative point about the condition of religious liberty in the United States as opposed to many other places in the rest of the world is certainly correct.  Berger makes clear that he is not at all “in tune with the vehemence” of the “campaign” of the USCCB on this issue.  But he also makes the very reasonable and, to my mind, highly persuasive point that there is an important difference between agreement about the scope of government power or the cultural conditions in which religious tolerance best flourishes and agreement about matters of specific theology or policy.  Here’s a bit from the conclusion:

Beyond the legal matter of cases that require new clarifications of the first amendment, there is a broader issue here—that of an increasingly intolerant culture of secularism, trying to use the state to enforce its values—itself part of the even broader issue of government over-reach.  The Roman Catholic Church has been a major target of this secularist agenda,  because its sexual ethics has been repugnant to many people (the ever widening scandal of pedophile priests has clearly fed the repugnance). There is a very real issue of religious freedom here—a good reason to support the Catholic bishops, even if one completely disagrees with their views on issues south of the navel.

Fourth Circuit: No Establishment Clause Violation in Credits for Off-Campus Religious Education

The United States Court of Appeals for the Fourth Circuit has held that a South Carolina public school district policy of permitting its students to receive 2 units of credit for off-campus religious instruction does not violate the Establishment Clause.  The policy was adopted pursuant to a South Carolina state statute which authorized such credits with various limitations.  Several students in the school district took a class in a neighboring religious school entitled, “Christian Worldview,” the quality of which was assessed by another religious school (thereby obviating the need for the public school to evaluate the quality of the educational program).  The public school district did not officially promote or otherwise encourage its students to take the course, and it did not list the course on its catalog, though it did permit fliers to be distributed by its guidance counselors advertising the course — to be discussed and distributed only after a student expressed interest.  Over a 3 year period, about 20 of the district’s 1,500 students took the course each year.

The plaintiffs are parents and students in the district, as well as the Freedom From Religion Foundation, who believe that this policy violates the Establishment Clause.  The district court disagreed, and the Fourth Circuit affirmed.  After eliminating some of the plaintiffs on standing grounds (including FFRF), the court recognized the difference between a case like this and Zorach v. Clausen — the giving of academic credit for release time programs.  But the court found that this distinction was not important with respect to the constitutionality of release-time programs.  The one that mattered was the distinction between Illinois ex rel. McCollum (in which religious instruction was had within the public schools, and those who did not want it were compelled to go elsewhere) and Zorach (off-campus instruction), and the district’s approach was far closer to the latter.

Here is another interesting statement by the Fourth Circuit:

[P]rivate religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school . . . . It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.” Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002) (upholding an Ohio voucher initiative for this reason).

The case is Moss v. Spartanburg County School District Seven.

Call for Papers: “Emerging Issues in First Amendment Jurisprudence”

The Elon Law Review has issued a call for papers for a symposium, “Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship between Religion and the State in the Modern Age,” to be held in October 2012. Proposals are due next month. Details are here.

Syria’s Threatened Christians

The authors of this New York Times op-ed discuss the threat anti-Assad forces, which include increasing numbers of Sunni jihadists, pose to Syria’s Christians. “The ousting of the Assad regime has become a global moral obligation,” they write, “but so has the duty to ensure that Syria’s future holds a place for all minorities.” A nice thought, but given the track record, can anyone seriously expect that either Western governments or the international human rights community will do very much for Syria’s Christians?