Religious Speech as Free Speech Prototype

In my class this semester on Freedom of Speech and Freedom of Inquiry, I have been struck by how many of the foundational arguments for and against tolerance for free speech have been made in the context of religious belief and expression. Whether it is Hobbes’ antagonism toward such speech in Book II.29 of “Leviathan,” or Locke’s defense of toleration in his “Letter,” or again Madison’s “Memorial and Remonstrance,” and so on, the root exemplar of free speech historically was religious speech.

A new book treats this subject systematically, Religious Speech and the Quest for Freedoms in the Anglo-American World, by Wendell Bird (Cambridge University Press), and argues for a similar conclusion, it appears.

In the secular, contemporary world, many people question the relevance of religion. Many also wonder whether religiously-informed speech and beliefs should be tolerated in the public square, and whether religions hinder freedom. In this volume, Wendell Bird reminds us that our basic freedoms are the important legacies of religious speech arising from the Judeo-Christian tradition. Bird demonstrates that religious speech, rather than secular or irreligious speech based on other belief systems, historically made the demands and justifications for at least six critical freedoms: speech and press, rights for the criminally accused, higher education, emancipation from slavery, and freedom from discrimination. Bringing an historically-informed approach to the development of some of the most important freedoms in the Anglo-American world, this volume provides a new framework for our understanding of the origins of crucial freedoms. It also serves as a powerful reminder of an aspect of history that is steadily being forgotten or overlooked-that many of our basic freedoms are the historical legacies of religious speech arising from Judeo-Christian faiths.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • A petition for certiorari was filed with the Supreme Court in Faith Bible Chapel International v. Tucker. The Tenth Circuit denied an en banc review of a panel decision that held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. In the case, a former high school teacher and administrator/chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. 
  • In Belya v. Kapral, the Second Circuit denied en banc review of a three-judge panel decision which held that the collateral order doctrine does not allow the appeal of an interlocutory order rejecting a church autonomy defense. The defense was raised in an action in which the plaintiff contended that he was defamed when the defendants publicly accused him of forging a series of letters regarding his appointment as Bishop of Miami in the Russian Orthodox Church Outside Russia. 
  • The Second Circuit heard oral arguments in New Yorkers For Religious Liberty, Inc. v. The City of New York. At issue are First and Fourteenth Amendment challenges to New York City’s public employee COVID vaccine mandate by employees with religious objections to the vaccines. 
  • The Fifth Circuit heard oral arguments in U.S. Navy SEALs 1-26 v. Biden. In the case, a Texas federal district court issued preliminary injunctions barring the U.S. Navy from imposing its COVID-19 vaccine mandate on Navy service members who sought religious exemptions from the requirement. 
  • In Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, New York, a New York federal magistrate judge recommended that the district court dismiss on various procedural and jurisdictional grounds a number of claims in a long-running suit by an Orthodox Jewish Chabad organization, which has been unable to obtain permission to use its property for religious education, worship, and related activities. The Second Amended Complaint in the case asserted seventeen causes of action under the First, Fourth, Fifth, and Fourteenth Amendments. It also asserted causes of action under RLUIPA and the state Constitution. 
  • In Collins v. City University of New York, a New York federal district court rejected a student’s claims that his free exercise, equal protection, and procedural due process rights were violated when he was denied a religious exemption from City University’s COVID vaccine mandate. In rejecting the student’s free exercise claim, the court said that the Vaccination Policy is neutral, generally applicable, and easily passes rational basis review.