Vischer on Religious Liberty and For-Profit Businesses

You should make the time to read Rob Vischer’s new piece, Do For-Profit Businesses Have Free Exercise Rights?  One interesting feature of the paper is Rob’s engagement with the First Amendment institutionalism literature.  He makes the case for some line drawing, in his usual careful and thoughtful way.  Here is the abstract:

Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise.

Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.

Gay Wedding Cakes and Liberalism

Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections.  One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.

This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation.  By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe.  Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed.  They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction.  Liberalism is the philosophy at the heart of the enduring American constitutional order.

Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to Read more

Morse on Navigating the Penalties in the Affordable Care Act

Edward A. Morse (Creighton U. School of Law) has posted Lifting the Fog: Navigating the Penalties in the Affordable Care Act. The abstract follows.

This article provides an analysis and critique of tax penalties affecting employers and individuals in the Affordable Care Act. After an overview of the Act and its intended role in addressing problems in the health insurance system, the article turns to examine the employer and individual mandates, along with the requirement of minimum essential coverage. It argues that behavioral effects of these provisions are unlikely to achieve the desired policy outcomes. Moreover, the failure to accommodate conscience exemptions for employers and citizens with objections to contraceptive coverage likewise erects a barrier to achieving the desired policy goal of expanded coverage. Finally, the article briefly touches on the problems associated with state exchanges and their implications for employers and citizens seeking health insurance coverage. An appendix shows hypothetical computations affecting an employer decision to shift employees to exchanges rather than to continue employer-provided coverage.

And from the Introduction: Read more

Egypt’s Copts and Persecution

At an academic conference a while ago, I made an offhand reference to the contemporary persecution of Christians. My remark was greeted with some incredulity, even derision. There are, one scholar responded sarcastically, something like two billion Christians in the world today. “Next you’ll be telling us a billion Chinese are also in need of protection.”

The failure of many opinion leaders in the West to acknowledge what’s happening to Christians around the world results from many factors, including, as I’ve written, a kind of psychological disconnect. Western liberals are not accustomed to seeing Christians as sympathetic victims, but as adversaries to be resisted. The idea that Christians might be suffering from persecution ruins the narrative.

An article from last week’s Washington Post might change some minds. In response to increasing attacks on them since the revolution that brought the Muslim Brotherhood to power, Egypt’s Copts are showing a new assertiveness. Traditionally, Coptic leaders keep a low profile, avoiding confrontation with authorities. Now, however, Copts are adopting a more confrontational approach, vocally protesting the wrongs being done them:

Islamist President Mohammed Morsi, of the Muslim Brotherhood, has vowed to promote equality between Egypt’s Muslim majority and Christian minority. But Christians have been worried by the growing influence in society and government of Muslim conservatives and hard-liners, many of whom espouse rhetoric consigning Christians to second-class status.

A mob attack this month on the Cairo cathedral that serves as the seat of the Coptic pope raised alarm bells among Christians, who make up about 10 percent of the country’s 90 million people. There has been a surge in attacks on Christians and churches in the two years since the ouster of autocrat Hosni Mubarak. But for Christians, the cathedral violence laid bare their vulnerability. Morsi quickly condemned the violence, saying attacking the cathedral was like attacking him personally. But the Coptic Pope Tawadros II accused him of failing to protect the cathedral in an unprecedented direct criticism.

Copts have no illusions about the possible consequences of their new assertiveness: more persecution. But it seems a price they’re willing to pay. A senior Coptic monk told the AP, ““Our church grows stronger with martyrdom. My faith and confidence tell me that so long as our church is in the hands of God, no one can hurt it.”

The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five:

1. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [259 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [234 downloads]

3. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [147 downloads]

4. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [135 downloads]

5. For-Profit Corporations, Free Exercise, and the HHS Mandate  by
Scott Gaylord (Elon U. School of Law) [134 downloads]

Hintze on Mandatory Influenza Vaccinations for Healthcare Employees and Religious Exemptions

Drew D. Hintze (Martinez Law Group, P.C., Denver) has posted Mandatory Influenza Vaccination Policies in Colorado: Are Healthcare Employees with Religious Conflicts Exempt? The abstract follows.

Colorado is attempting to reduce the spread of influenza in healthcare facilities from healthcare personnel to patients.  Colorado’s Department of Public Health and Environment (“CDPHE”) and the Colorado Hospital Association (“CHA”) have each approved initiatives endorsing the need for healthcare organizations in the state to develop influenza vaccination policies to increase vaccination coverage among healthcare personnel.  As mandatory influenza vaccinations become more commonplace in healthcare organizations nationwide, concerns have arisen regarding the circumstances in which a healthcare worker may seek an exemption to an employer-mandated immunization.  This article discusses mandatory influenza vaccination policies in Colorado and the legal issues healthcare employers should consider when an employee seeks an exemption from an influenza vaccination based on religious beliefs.