American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.
This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.
Here are some important law-and-religion news stories from around the web:
In New York ex rel. James v. Griepp, the Second Circuit affirmed a New York district court’s refusal to grant a preliminary injunction against anti-abortion protesters who had clashed with volunteer clinic escorts.
In Resurrection School v. Hertel,a Michigan Catholic school requested an en banc hearing after the Sixth Circuit denied the school’s claim that Michigan’s mask mandate violated the school’s religious beliefs by preventing students from participating fully in their Catholic education.
After Washington state announced a COVID-19 vaccine requirement for all employees, the Bishop of Spokane stated that conscience rights should be respected but that priests should not sign documents in support of conscience exemptions.
The Biden administration is reviewing a federal rule that prohibits public universities from removing funding from religious student organizations whose policies conflict with campus anti-discrimination rules.
Proof of COVID-19 vaccination status or a negative COVID-19 test is now required to visit some of Italy’s most famous Catholic cathedrals.
Under President Xi Jinping, freedom of religion in China is being restricted. Examples of the reported suppression include: requiring independent churches to join religious organizations supervised by the Chinese Communist Party, detaining Christians that criticize the government, and banning the sale of the Bible.
The Gujarat High Court, in Mumbai, India, granted protection to interfaith couples when it passed an interim order suspending certain provisions of the Gujarat Freedom of Religion Act.
Here are some important law-and-religion news stories from around the web:
The Fifth Circuit sitting en banc in Whole Woman’s Health v. Paxton upheld a Texas law enacted in 2017 that bans abortions performed through the dilation and evacuation procedure.
In Separation of Hinduism From Our Schools v. Chicago Public Schools, an Illinois federal district court held that plaintiff’s amended complaint sufficiently alleged constitutional violations in a suit challenging Chicago Public Schools’ “Quiet Time Program,” which was led by a Transcendental Meditation instructor.
In Solid Rock Baptist Church v. Murphy, a New Jersey federal district court dismissed as moot a challenge to a COVID-19 executive order limiting the number of people who could attend an indoor religious service.
In Magliulo v. Edward Via College of Osteopathic Medicine, a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning students’ enrollment on their COVID-19 vaccination status. The students had previously requested an exemption for religious reasons.
Over 80 members of the U.S. Congress have signed a letter objecting to the Biden administration’s decision to drop a lawsuit filed on behalf of a pro-life nurse who was forced to participate in performing an abortion procedure in violation of federal conscience laws.
The Justice Department announced the seizure of seventeen funeral scrolls, manuscripts, and community records that were looted from Eastern European Jewish communities during the Holocaust.
The archdioceses of Philadelphia, Chicago, California, and New York have instructed their clerics not to assist parishioners seeking religious exemptions from receiving COVID-19 vaccines stating that “there is no basis in Catholic moral teaching for rejecting vaccine mandates on religious grounds.”
Former CLR Fellow Jessica Wright ’14 began her legal career in Kabul, Afghanistan where she worked with a team of local and international lawyers on Afghan commercial and tax law matters, as well as Rule of Law Initiatives. She also served as a legal advisor to the Office of the President, and was an adjunct professor of law at the American University of Afghanistan. Now a litigation associate at DLA Piper in New York, Jessica reflects in this important post on the dire events unfolding in Afghanistan, and what the return of the Taliban means for the Afghan people.
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“It’s nearly spring again, and I’m still in Afghanistan, almost inexplicably. American airstrikes in the provinces are shifting Taliban sights on the cities, they say, and foreigners are advised to leave. Progress in law and institution building ebbs and flows, as do the foreign monies for projects, as do the people who run them in short, detached tours. Life is cyclical for almost everyone, turning in tedium or tragedy depending on whether one’s aim is a project benchmark or simply reaching home across town, unscathed.”
I wrote those words in the spring of 2018, just before I left Afghanistan for the last time. The Taliban’s spring offensive was about to begin, and I faced a direct threat from the ISI-backed Haqqani network. In truth, though, even then, Kabul didn’t feel like a war zone for more than a few days or hours at a time, and I always knew that if things went south, I could be on the next flight out. Expats are privileged to live with a sense of detachment in places like Afghanistan – we can view everyday life with its bomb blasts and security threats as a story to tell instead of a reality to live. Still, proximity to war changes the way we understand conflict – it personalizes the fight and deepens the relationships forged with a place and a people.
The speed at which the Taliban has advanced across Afghanistan in the last week has shocked nearly everyone I know, from seasoned journalists to well-connected Afghan politicians. Ten provincial capitals were seized by the Taliban in just six days: Shebergan, Sar-e pul, Kunduz, Taluqan, Aybak, Pul-e Khumri, and Faizabad in the north, Farah in the west, and Zaranj and Ghazni in the south. Understanding that the war in the provinces had definitively moved to the cities, Afghan friends began sending panicked messages asking for advice and visa references and Embassy contacts, hoping that with a little luck they could still make it out. Then, on August 13, two major cities fell: Herat, a vital cultural and economic hub on the border with Iran, and Kandahar, an important city in the southern Pashtun heartland. In quick succession, Mazar-i Sharif, the last holdout in the north, fell on August 14, and on Saturday, the Taliban took Jalalabad, the capital of Nangarhar province, cutting off Kabul from the east. Entire Afghan units surrendered to the Taliban, knowing that without U.S. support they could no longer continue to fight. Others laid down their arms in protest, unwilling to risk their lives on the battlefield for a hopeless cause and a government in shambles.
Colleagues on the ground in Kabul have reported a massive influx of refugees from the provinces. They tell stories of families weeping outside embassy gates and passport offices, desperately seeking a way out of the country. Many others have set up mattresses and makeshift tents in the local parks knowing they have nowhere else to run. As the weekend wore on, locals rushed to stock up on food and other necessities, and all the while American Chinooks and Black Hawks flew overhead at constant, regular intervals, serving as a brutal reminder that as foreigners escaped to safety, Afghans were trapped on the ground to face their fate alone.
On Sunday, as the Taliban continued its advance toward Kabul, President Ashraf Ghani and Vice President Amrullah Saleh relinquished power and fled the country, signaling the collapse of the Afghan government. In a post on his Facebook page, Ghani stated, “To avoid bloodshed, I thought it would be better to leave.” Shortly thereafter, Dr. Abdullah, the former Chief Executive Officer of Afghanistan, who remains in the country, sent a message to the people of Afghanistan asking them to stay calm. He assured them that “God will make [Ghani] accountable.” Former President Karzai, who also remains in Kabul, posted a photo of himself and his daughters with a message to the Taliban, asking them to provide security and safety for the people. The Taliban said they would not take Kabul by force, but when they reached the outskirts of the city on Sunday evening, they began making their way in to “prevent lawlessness.” Judging by the messages from my Afghan friends and colleagues, the mood had shifted from quiet panic to stoic resignation. They told me that the American flag at the U.S. Embassy had been taken down, and that the massive Afghan flag atop Wazir Akbar Khan hill was removed by the Taliban shortly thereafter. They sent pictures of Taliban leaders inside the Presidential Palace – once a serene fortress – and reported that groups of fighters were milling about on the streets carrying their distinctive white flag bearing the shahadah: “I bear witness that none deserves worship except God, and I bear witness that Muhammad is the messenger of God.” It felt as if everyone was holding their breath, expecting the bloodshed to start at any moment but still hoping, desperately, for some other outcome.
It is not yet clear what a Taliban regime will mean for the people of Afghanistan, but according to analysts, the insurgent group, ousted from power 20 years ago by a U.S.-led invasion, has been growing stronger for the last two decades, and the methods they employ to govern will likely be as brutal as they have been in the past. The Taliban has run a shadow state for years in the southern provinces, and residents of those areas report that gruesome beatings and executions remain commonplace. Researchers point out that the Taliban’s leadership has become savvier, which may in part account for its ability to seize the Afghan capital, but they caution that such change does not necessarily translate to more lenient rule.
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Islam has always been at the center of the lives of the Afghan people. In fact, a form of Sharia or Islamic law governed the legal process in Afghanistan until 1925. Traditional Islam in Afghanistan meant minimum government with little interference in people’s lives; everyday decisions were carried out by elders in the tribe and the community.” It was not until 1925 that King Amanullah introduced the first civil legal code, and not until 1946 that a Sharia faculty was set up at Kabul University, allowing an integration of traditional Sharia with modern law. “Another moderating factor for Islam in Afghanistan was the enormous popularity of Sufism, the trend of mystical Islam,” which is built on prayer, contemplation, music, and a “permanent quest for truth” (Ahmed Rashid describes Sufism and Islam in Afghanistan in his book, Taliban, from which the quotes in this section are taken).
The “austere Wahabbi creed of Saudi Arabia,” which opposed mystical Sufism, gained some traction in Afghanistan, but Islamic extremism had never flourished in earnest before the Taliban. There were indeed several traditional political Islamic movements, some of which sought a type of Muslim internationalism that would unite the ummah or Muslim world, and to achieve their political ends, “parties like the Pakistani Jamaat and Hikmetyar’s Hizb-e-Islami set up highly centralized modern parties organized along communist lines with a cell system, extreme secrecy, political indoctrination, and military training.” These movements were led by radical Islamicists, but they could be considered rather modern and forward-looking in comparison to the Taliban.
The Taliban’s interpretation of Islam, jihad, and social transformation echoes none of the Islamicist trends in Afghanistan. Rather, the Taliban’s particular interpretation of Islam stems from the teachings of semi-educated mullahs in the North-West Frontier Province (NWFP), who trained generations of Afghans in rural madrassas. Their interpretation of Sharia is heavily influenced by Pashtunwali, the tribal code of the Pashtuns, and the madrassas themselves were funded and influenced by Saudi Arabian Wahhabists. The Taliban are not advocates of learning or reform, and they accept “no concept of doubt except as sin and consider debate as little more than heresy.” In addition, the Taliban tend to be “poorly tutored in Islamic and Afghan history, knowledge of the Sharia and the Koran and the political and theoretical developments in the Muslim world during the twentieth century.”
When the Taliban first entered Kabul in 1996, the religious police beat men and women in the streets for not having long enough beards and for wearing the burka improperly. An intelligence agency was formed and staffed with thousands of professional spies and paid informers. Anyone who questioned the Taliban’s edicts were said to have questioned Islam itself and were punished severely. The Taliban massacred ethnic and religious minorities, and its subjugation of women was total. Their regime was built entirely on what amounted to myth: particularized beliefs, fears, and ideologies that had nothing to do with Islam itself or with Afghan cultural norms. The Taliban’s ban on every form of entertainment, for example, was based on the belief that entertainment, particularly music, strained the mind and hampered the study of Islam.
In recent years, the Taliban have sought to project a more moderate image and have shown some flexibility in their application of Sharia. In an Eid holiday message in May, the Taliban’s supreme leader Mullah Haibatullah Akhundzada stated, “The Islamic Emirate seeks cordial and positive relations based on mutual respect and good conduct with all neighboring, regional and world countries.” Many caution, however, that while Taliban leaders have become more adept politicians, they have not changed their goal of reinstating an Islamic emirate with the repressive laws and retrograde policies the world has seen before. As it currently stands, foreign powers have little to no leverage when it comes to ensuring that international humanitarian law is followed and that the rights and freedoms of the people are protected.
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What is happening in Afghanistan feels deeply personal to me. I have taught and worked with and come to know the vibrant younger generation of Afghans who desire peace and have worked, relentlessly, for a stable democracy. What will become of them now? Will they be able to study at university and operate businesses and run for office? Will Afghan journalists be able to publish stories, unfettered, or will the press become a propaganda arm of the new regime? And what about the women and girls? Will they be relegated to the home and denied an education and a livelihood? Will those intelligent, driven women who became law firm partners and political activists and influential artists be silenced and made to live a life in the shadows? These questions haunt me, and I struggle to imagine the Kabul I knew transformed into the bastion of a merciless Taliban state.
It is difficult to connect to tragedies from which we are far removed, but it is important to look to Afghanistan now. All of us would do well to remember that the Afghan people have suffered generation after generation of warfare and humanitarian crises, all at the hands of foreign powers. And there are dark days ahead.
Here are some important law-and-religion news stories from around the web:
The Tenth Circuit, in Ashaheed v. Currington, reversed a Colorado federal district court’s dismissal of a Muslim inmate’s free exercise and equal protections claims concerning a Colorado corrections center’s requirement that inmates shave their bears at intake.
A Texas federal district court, in Franciscan Alliance, Inc. v. Becerra, permanently enjoined enforcement of the anti-discrimination provisions of the Affordable Care Act and implementing regulations against Christian health care providers and health plans. Enforcement would have required the providers and plans to provide insurance coverage for abortions or gender-transition procedures.
An Indiana federal district court, in Roman Catholic Archdiocese of Indianapolis v. Roncalli High School, ruled that a lawsuit filed by a former Catholic school guidance counselor against the Archdiocese of Indianapolis must be dismissed. The court found that the former counselor qualified as a minister of religion and thus the Archdiocese and the school were exempt from the counselor’s federal workplace discriminations claims.
New Hampshire Governor Chris Sununu signed the New Hampshire Religious Liberty Act, which permits religious organizations to continue operating during an emergency to the same or greater extent as other “essential” businesses and organizations.
[Editors: The following is a post from St. John’s 3L law student, Raul J. Muniz.]
On July 11, thousands of Cubans in more than 40 cities across the country took to the streets to protest the Cuban government. The island has not seen public demonstrations on this scale in over 62 years since Fidel Castro’s revolutionary forces took power in 1959. The Cuban people have lived under a single-party authoritarian regime where political dissent is punished and repressed. The protests demanding liberty were exacerbated by increasing COVID-19 cases and a failing economy.
Protestors were quickly met with large-scale arrests by security forces and a complete shutdown of internet access to limit communication and prevent videos of the protests from circulating across social media. According to the Foundation for Pan American Democracy (FDP) Center for Incident Reports, at least 750 Cubans have disappeared or have been detained.
The arrests and detentions have included some prominent religious figures. Among those detained were Pastor Yeremi Blanco and Pastor Yarian Sierra of the Berean Baptist Mission, Reverend Yusniel Pérez Montejo of the Eastern Baptist Convention, and Father Jose Alvarez Devesa of the Roman Catholic Church. Cuban authorities also detained Berta Soler, leader of the Ladies in White, an opposition movement founded by wives and relatives of jailed dissidents who silently walk through the streets dressed in white after attending Sunday Mass.
Religion and Religious Freedom in Cuba
Roman Catholicism is the dominant religion on the island, with 60% of Cubans identifying as members of the Roman Catholic Church.
Professor Alejandro Anreus explains, in Catholic Cuba, that by the late 1950s, Catholic leaders were openly challenging President Fulgencio Batista, Fidel Castro’s predecessor, to return to an elected and constitutional democracy. When Castro’s revolutionary forces successfully overthrew Batista’s military dictatorship, Catholic leaders and laity sensed new possibilities in Castro’s promises of an ethically managed government, agrarian reform and land redistribution, literacy campaigns, and other social-justice improvements.
However, after Castro came to power, the Cuban government banned public religious events, expelled Roman Catholic priests, and nationalized Catholic schools. Notably, the Auxiliary Bishop of Havana, Boza Masvidal, was jailed and deported after condemning Castro’s self-declared Marxist-Leninist government. Father Miguel A. Loredo, a Franciscan friar and an outspoken critic of the revolution’s denial of religious freedom, would spend ten years in prison and was forced to leave Cuba. By 1962, 70 percent of priests and 90 percent of nuns had left Cuba.
Tensions between the Church and Cuban government have eased somewhat in more recent years. Pope John Paul II, Pope Benedict XVI, and Pope Francis all have visited the island, and the first Catholic Church since the 1959 revolution was inaugurated in 2019. However, religious expression is limited by state surveillance and control; religious leaders that speak out against the government are subject to government discrimination and harassment.
Role of the Roman Catholic Church
In recent years, the Catholic Church has served as a mediator in negotiating the release of political prisoners and brokering the normalization of relations between the United States and Cuba. Critics of the Cuban government have asserted that the Church has not done enough to confront the government on human rights abuses.
After the protests on July 11, the Cuban Conference of Catholic Religious set up a hotline to advise the families of detainees about pursuing claims of habeas corpus, locating detainees, and providing spiritual and psychological guidance. Cuban bishops issued a statement on July 12 acknowledging “that the people have the right to express their needs, desires and hopes and, in turn, to express publicly how some of the measures that have been taken are seriously affecting them,” and encouraged citizens and the government to seek dialogue. Pope Francis, in his first Angelus Address after being hospitalized for two weeks, extended his support for the Cuban people and prayed for a “society that is more just and more fraternal through peace, dialogue and solidarity.”
Although the protests on July 11 perhaps suggest that Catholic leaders in Cuba are willing to take a stronger stance against the government, it remains unclear what role the Catholic Church will play as Cubans on the island, and Cuban exiles in the United States, demand further and more far-reaching changes.
Here are some important law-and-religion news stories from around the web:
A petition for certiorari was filed with the U.S. Supreme Court in Seattle’s Union Gospel Mission v. Woods, in which the Washington Supreme Court held that, as applied, the religious and non-profit exemption to the state’s anti-discrimination law may be unconstitutional.
A petition for certiorari was filed with the U.S. Supreme Court in Gordon College v. DeWeese-Boyd, in which the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor at a private Christian liberal arts college who claims her promotion to full professor was denied because of her public opposition to the school’s policies on LGBTQ individuals.
U.S Supreme Court Justice Stephen Breyer, in Calvary Chapel of Bangor v. Mills, denied an application by a Maine church for injunctive relief, which sought to prevent Maine’s governor from reinstating COVID-related restrictions on worship services, pending disposition of its petition for certiorari.
U.S. Army sergeant, Jacob DiPietro, became one of the first Christian service members to receive an exemption to grow out his hair and beard for religious purposes.
A Pennsylvania appellate court, in Kaur v. Singh, upheld an order of protection that excludes plaintiff’s ex-husband from attending the Nazareth Temple on Sundays, finding that the order does not violate his Free Exercise rights.
A Scotland court ruled in favor of Kenneth Ferguson, a Christian CEO, who was unjustly fired by The Robertson Trust, the country’s biggest grant-making trust, because of his religious views on marriage.
Bar Ilan University has announced a call for papers that address issues concerning “Religiously Motivated and Religion-Based Discrimination.” Selected papers will be presented at an international conference held in person, conditions permitting, on January 11-12, 2022. In addition, a select number of accepted papers will be published in a special theme-issue of the Journal of Law, Religion and State.
Abstract submissions are due by September 1st, 2021. For more information and to submit an abstract, visit this link.
Here are some important law-and-religion news stories from around the web:
The Tenth Circuit, in 303 Creative LLC v. Elenis, upheld the application of Colorado’s Anti-Discrimination Act to a wedding website design company whose owner refused for religious reasons to create websites that celebrate same-sex marriages.
The Ninth Circuit, in Cedar Park Assembly of God of Kirkland v. Kreidler, reversed a Washington federal district court’s dismissal of a challenge to a Washington statute that requires health insurance plans that cover maternity care to cover abortions as well.
The Ninth Circuit, in Brach v. Newsom, held that the closure of in-person instruction in private religious schools may have violated parents’ and students’ due process rights.
Suit was filed in a Michigan federal district court, in Country Mill Farms v. City of East Lansing, challenging a city policy to ban plaintiff from participating in the city’s farmer’s market due to his religious beliefs surrounding marriage.
A Brooklyn federal court ordered Hobby Lobby to forfeit an ancient tablet bearing a portion of the Epic of Gilgamesh, Hobby Lobby acquired in 2014 for the company’s collections at the Museum of the Bible.
The Luxembourg-based E.U. Court of Justice held that companies in the European Union can ban employees from wearing headscarves in the workplace if the employer wishes to present a neutral image towards customers or prevent social disputes.
