Posted on by Marc O. DeGirolami

Illinois Law Review Symposium on Substantial Burdens…and a Few Thoughts on the New Accommodation Skepticism

The University of Illinois Law Review has posted a set of essays on the issue of substantial burdens. These essays were meant to coincide with the Supreme Court’s Zubik decision, and they did, though the Court did not really oblige in entirely avoiding the substantial burden issue. So much the better. Kudos to Michael Helfand in particular for assembling such a varied little troop. I was pleased to be among them.

My essay, Substantial Burdens Imply Central Beliefs, takes the Brennan-esque view that any society that is amenable to religious accommodation is going to have to involve itself to some extent in evaluating religious claims, brought by religious claimants, that the law imposes upon religious exercise. “Religious” is the key term here. In the end, and once we have taken on the business of “religious” accommodation, there is no avoiding a good bit of church-state entanglement. To render the substantial burden inquiry coherent, we need some concrete, but generous, idea of what religion is. Here the essay briefly considers the systematic nature of religion, and the sense in which courts can only evaluate whether a law imposes a “substantial burden” on religious exercise by recourse to a background of interlocking beliefs and exercise of which the exercise at issue forms one part. Efforts to avoid this type of entanglement, and to segregate civil or secular burdens from religious burdens, are infeasible and, more importantly, miss the very point of religious accommodation–an official acknowledgment of specifically religious reasons (not personal reasons, or financial reasons, or emotional reasons, or some other kind of reasons) for non-compliance with the law. The effort to isolate civil/secular reasons from religious reasons is itself the latest iteration of an old debate in liberal political theory. Here, and with a few examples from the Hobby Lobby case, I argue that it is unsuccessful. It fundamentally misunderstands the religious dimension of the objection. It mistakes a claimant’s money for its principles.

This is the first of two projects I’ve been working on concerning what I am calling the new accommodation skepticism. Over the last few years, religious accommodation has come under fire from those who are largely indifferent, unsympathetic, or hostile to religion–particularly organized religion, and most particularly Christianity. But there is a new, emerging skepticism from other quarters–from those who are sympathetic to religion and may themselves even be religious believers. Such skepticism is not opposition to accommodation full stop. But it does observe some of the ways in which the regime of religious accommodation prevalent since the 1960s has had profound, and profoundly non-neutral, and indeed often profoundly regrettable, effects on the American legal conception of religion, a conception that is achieving ever-greater salience in the so-called “Rise of the Nones” and other contemporary religious phenomena.

Posted on by Marc O. DeGirolami

Mellema, “Complicity and Moral Accountability”

In light of the current interest in, and common misunderstanding of, arguments fromp03239 complicity in many law and religion controversies (see, for example, the discussion here, and my criticisms and disagreements here), this new book by Gregory Mellema (Calvin College), Complicity and Moral Accountability (Notre Dame Press), is a particularly welcome contribution. The publisher’s description follows.

In Complicity and Moral Accountability, Gregory Mellema presents a philosophical approach to the moral issues involved in complicity. Starting with a taxonomy of Thomas Aquinas, according to whom there are nine ways for one to become complicit in the wrongdoing of another, Mellema analyzes each kind of complicity and examines the moral status of someone complicit in each of these ways.

Mellema’s central argument is that one must perform a contributing action to qualify as an accomplice, and that it is always morally blameworthy to perform such an action. Additionally, he argues that an accomplice frequently bears moral responsibility for the outcome of the other’s wrongdoing, but he distinguishes this case from cases in which the accomplice is tainted by the wrongdoing of the principal actor. He further distinguishes between enabling, facilitating, and condoning harm, and introduces the concept of indirect complicity.

Mellema tackles issues that are clearly important to any case of collective and shared responsibility, yet rarely discussed in depth, always presenting his arguments clearly, concisely, and engagingly. His account of the nonmoral as well as moral qualities of complicity in wrongdoing—especially of the many and varied ways in which principles and accomplices can interact—is highly illuminating. Liberally sprinkled with helpful and nuanced examples,Complicity and Moral Accountability vividly illustrates the many ways in which one may be complicit in wrongdoing.

Posted on by Christina Vlahos

Barrett-Fox, “God Hates”

In June, the University Press of Kansas will release “God Hates: Westboro Baptist Church, American Nationalism, and the Religious Right,” by Rebecca Barrett-Fox (Arkansas State University). The publisher’s description follows:

The congregants thanked God that they weren’t like all those hopeless people outside the church, bound for hell. So the Westboro Baptist Church’s Sunday service began, 9780700622658and Rebecca Barrett-Fox, a curious observer, wondered why anyone would seek spiritual sustenance through other people’s damnation. It is a question that piques many a witness to Westboro’s more visible activity—the “GOD HATES FAGS” picketing of funerals. In God Hates, sociologist Barrett-Fox takes us behind the scenes of Topeka’s Westboro Baptist Church. The first full ethnography of this infamous presence on America’s Religious Right, her book situates the church’s story in the context of American religious history—and reveals as much about the uneasy state of Christian practice in our day as it does about the workings of the Westboro Church and Fred Phelps, its founder.

God Hates traces WBC’s theological beliefs to a brand of hyper-Calvinist thought reaching back to the Puritans—an extreme Calvinism, emphasizing predestination, that has proven as off-putting as Westboro’s actions, even for other Baptists. And yet, in examining Westboro’s role in conservative politics and its contentious relationship with other fundamentalist activist groups, Barrett-Fox reveals how the church’s message of national doom in fact reflects beliefs at the core of much of the Religious Right’s rhetoric. Westboro’s aggressively offensive public activities actually serve to soften the anti-gay theology of more mainstream conservative religious activism. With an eye to the church’s protest at military funerals, she also considers why the public has responded so differently to these than to Westboro’s anti-LGBT picketing.

With its history of Westboro Baptist Church and its founder, and its profiles of defectors, this book offers a complex, close-up view of a phenomenon on the fringes of American Christianity—and a broader, disturbing view of the mainstream theology it at once masks and reflects.

Posted on by Christina Vlahos

“Churches and States” (Hryn, ed.)

In July, Harvard University Press will release “Churches and States: Studies on the History of Christianity in Ukraine,” edited by Halyna Hryn. The publisher’s description follows:

This book collects nine articles that originally appeared in the journal Harvard Ukrainian Studies and that arose from the Harvard Ukrainian Research Institute’s Millennium Project, an initiative launched in the 1980s to celebrate onemissing_jacket
thousand years of the Christianization of Kyivan Rus´. The articles cover a wide array of subjects: the ecclesiastical structure of the Christian Church in Rus´ in its earliest period (Andrzej Poppe); the conflict between Orthodoxy and the Uniate Church from 1569 to 1700 (Teresa Chynczewska-Hennel); an account of the Uniate Church and the partitions of Poland (Larry Wolff); the transformation of the Greek Catholic Church under the Austrian Empire (1848–1914) (John-Paul Himka); the Greek Catholic Church in the period between the two World Wars (Andrew Sorokowski); a rethinking of the relationship of Church and society in Galician Ukraine from 1914 to 1944 (Bohdan Budurowycz); and the Russian Orthodox Church in Ukraine during the interwar period (Bohdan Bociurkiw). The book concludes with a bio-bibliography of Bohdan Bociurkiw, a scholar who devoted his career to the study of Ukrainian Church history (Andrii Krawchuk). These essays provide new insights and a fresh perspective to the discipline.

Posted on by Marc O. DeGirolami

Greenawalt, “From the Bottom Up: Selected Essays”

I’m delighted to post this notice for a new book of essays by my old master, Kent From the Bottom UpGreenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).

As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:

A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.

Posted on by Christina Vlahos

“The Encyclopedia of Law and Religion” (Robbers et al, eds.)

In June, Brill Publishing will release “The Encyclopedia of Law and Religion” edited by Gerhard Robbers (Minister of Justice for Consumer Protection of Rhineland-Palatinate (Germany)), and W. Cole Durham, Jr. (Brigham Young University).  The publisher’s description follows:

In recent years, issues of freedom of religion or belief and state-religion relations have become increasingly important worldwide. While some works have treated 54747such issues regionally, the Encyclopedia of Law and Religion is unique in its breadth, covering all independent nations and jurisdictions as well as the major international organizations, treating the relation between law and religion in its various aspects, including those related to the role of religion in society, the relations between religion and state institutions, freedom of religion, legal aspects of religious traditions, the interaction between law and religion, and other issues at the junction of law, religion, and state.

Offered online and in five print volumes – Africa, the Americas, Asia, Europe, Oceania, Special Territories, International Organizations and Index – this work is a valuable resource for religious and legal scholars alike.

Posted on by Christina Vlahos

“Civil Resistance in the Arab Spring” (Roberts et al, eds.)

In March, the Oxford University Press released “Civil Resistance in the Arab Spring: Triumphs and Disasters,” edited by Adam Roberts (University of Oxford), Michael J. Willis (University of Oxford), Rory McCarthy (University of Oxford), and Timothy Garton Ash (University of Oxford).  The publisher’s description follows:

Civil resistance, especially in the form of massive peaceful demonstrations, was at the heart of the Arab Spring-the chain of events in the Middle East and North Africa that 9780198749028
erupted in December 2010. It won some notable victories: popular movements helped to bring about the fall of authoritarian governments in Tunisia, Egypt, Libya and Yemen. Yet these apparent triumphs of non-violent action were followed by disasters–wars in Syria, anarchy in Libya and Yemen, reversion to authoritarian rule in Egypt, and counter-revolution backed by external intervention in Bahrain. Looming over these events was the enduring divide between the Sunni and Shi’a branches of Islam.

Why did so much go wrong? Was the problem the methods, leadership and aims of the popular movements, or the conditions of their societies? In this book, experts on these countries, and on the techniques of civil resistance, set the events in their historical, social and political contexts. They describe how governments and outside powers–including the US and EU–responded, how Arab monarchies in Jordan and Morocco undertook to introduce reforms to avert revolution, and why the Arab Spring failed to spark a Palestinian one. They indicate how and why Tunisia remained, precariously, the country that experienced the most political change for the lowest cost in bloodshed.

This book provides a vivid illustrated account and rigorous scholarly analysis of the course and fate, the strengths and the weaknesses, of the Arab Spring. The authors draw clear and challenging conclusions from these tumultuous events. Above all, they show how civil resistance aiming at regime change is not enough: building the institutions and the trust necessary for reforms to be implemented and democracy to develop is a more difficult but equally crucial task.

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Student Writing Competition

Law School students (and law school graduates who are not yet practicing law due to clerkships or other similar pursuits) are invited to submit papers for consideration from the “Religious Liberty Student Writing Competition.”

Sponsored by the Washington, D.C. Mid-Atlantic Chapter of the J. Reuben Clark Law Society and the International Center for Law and Religion Studies, the competition’s aim is to promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies.

Deadline for submissions is July 1, 2016.   Additional information can be obtained here.

 

Posted on by Mark Movsesian

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwell, the ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Posted on by Marc O. DeGirolami

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company….The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.