Posted on by JCPW

Day & Diaz on The Affordable Care Act and Religious Freedom

Terri Day & Leticia M. Diaz (Barry U. Dwayne O. Andreas School of Law) have posted The Affordable Care Act and Religious Freedom: The Next Battleground. The abstract follows.

This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the Supreme Court will apply strict scrutiny review as required by the Religious Freedom Reformation Act, the authors conclude that the HHS Mandate will not likely pass constitutional muster.

Posted on by Marc O. DeGirolami

A Bonanza at the Journal of Church and State

You ought to take some time to peruse the many interesting new articles and reviews recently published by the Journal of Church and State (some or all pieces may be behind a pay wall).  Among the highlights:

  • “The Number One Social Problem of our Time”: American Protestants and Temperance Politics in the 1950s, by Pamela Pennock
  • Spinoza’s Political Theology: Theocracy, Democracy, and Monism, by Andy Alexis-Baker
  • Kirpans, Law and Religious Symbols in Schools, by Satvinder Singh Juss
  • The Path Not Taken: Tocqueville, the Freedom of Education, and Alfred Stepan’s “Twin Tolerations” in France, 1843-50, by David A. Selby
  • Alan Brownstein’s review of Robert Audi’s book, Democratic Authority and the Separation of Church and State
  • Adam Carrington’s review of Paul Horwitz’s book, The Agnostic Age: Law, Religion, and the Constitution
  • Ran Hirschl’s review of of Law and Religion in the 21st Century: Religion Between States and Religious Communities (edited by Silvio Ferrari and Rinaldo Cristofori)
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Hicks on Power, Empire, and Expansion in Studies of North American Religions

Rosemary R. Hicks (Tufts U.) has posted Between Lived and the Law: Power, Empire, and Expansion in Studies of North American Religions. The abstract follows.

Taking debates about the Park51 (or ‘Ground Zero’) mosque and Islamic Community Center as a case study, this article demonstrates the need for scholars of religious traditions in North America to move beyond liberal modes of historicizing that pluralize narratives about religion but ignore how religion is defined and regulated. Liberal modes of historicizing create space for different traditions by first naturalizing differences as ostensibly fixed, inherent, and eternal – a dynamic that has proven to produce antagonistic narratives and relations as well as ‘tolerant’ ones. This is in part due to the fact that such narratives somewhat broaden the inclusivity of the U.S. public sphere but in so doing obscure the various means and power dynamics by which the boundaries of acceptable religiosity are policed. Finally, this article examines and offers analyses that provide more robust mechanisms by which to understand issues of religious diversity and liberty in the United States.

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Pride on Saving Christianity in Iraq

Jonathan Pride (Student, Harvard Law) has posted Saving an Ancient Community: Christianity in Iraq. The abstract follows.

The Christian community in Iraq has survived conquests by Arabs, Huns, and Turks over the two millennia since the birth of Christianity. However, the latest danger to Iraq’s Christians, who include Assyrians, Chaldeans, and Catholics, poses the largest threat that this community has faced yet. In post-Saddam Iraq, a lethal combination of a Western “other” Christian identity, Islamic extremism, and a depressed economy has taken an enormous toll on Christians in Iraq. Their communities all over the country have been devastated by violence against men, women, children, and community symbols like priests, bishops, and churches. Because they only numbered about 1.5 million before the fall of Saddam Hussein, these attempts to terrorize and scare away Christians threaten the very existence of Christianity in Iraq.

In response to violence inside Iraq, many Christians have fled the country or become internally displaced, fleeing to traditionally Christian areas in Northern Iraq. Though their situations outside Iraq as registered or unregistered refugees may be difficult, those who are a part of the Christian Iraqi diaspora are hesitant to return to their homeland due to the systematic violence and discrimination they have faced and may face again. Can international action or internal, government programs do anything to save Christianity in Iraq?

To answer this question, I will address a number of issues. First, I will explore the underlying causes of the historical violence against Christians, taking a deeper look at the construction of the Christian identity as the Western “other.” Second, I will consider the current situation facing Iraqi Christian refugees and internally displaced peoples. Finally, I will propose remedies that seek to encourage Christian Iraqis to either remain in or return to Iraq. These remedies include 1) deconstructing Christians’ “other” identity through constitutional changes and civil society initiatives, 2) creating a semi-autonomous “safe haven” for Christians inside Iraq, and 3) encouraging international economic assistance to revive devastated Christian communities. Though my suggestions are to promote a continuing Christian presence in Iraq, they are by no means a definitive solution. There is still time to save Christianity in Iraq, but it remains uncertain whether the community will ever fully recover from the devastation of the last ten years.

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Tebbe on Government Endorsement and Disparagement

Nelson Tebbe (Brooklyn Law School) has posted Government Endorsement and Disparagement. The abstract follows.

What are the constitutional limits on government endorsement? Recently, a sense has been spreading that when the government speaks on its own account, it faces few restrictions. That impression has been fed by two doctrines and their accompanying literatures. First, the Court’s cases developing the government speech doctrine have implied that the only constitutional restriction on government expression is the Establishment Clause, and scholars have adopted that assumption. Officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Second, experts on religious freedom likewise have assumed that there is no secular Establishment Clause. So the belief that government is free to endorse and denigrate secular ideas is common, thanks in part to the Supreme Court and in part to scholarship on free speech and religious freedom. But it is mistaken. In this Article, I argue that in fact the Constitution properly limits government endorsement through multiple provisions. I give examples of situations where official expression runs up against such limitations, including racialized speech, electioneering, same-sex marriage exclusions, political gerrymandering, and messages concerning reproductive decisions. Limits in these areas are grounded in equal protection, due process, and free speech itself. Together, my examples suggest a constitutional theme, government nondisparagement, that has been overlooked. Drawing out that theme, I suggest new contributions to theoretical debates surrounding political morality, free speech, and religious freedom.

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Ginn & Blaikie on Judges and Religious-Based Reasoning

Diana Ginn & David Blaikie (Dalhousie U. Schulich School of Law) has posted Judges and Religious-Based Reasoning. The abstract follows.

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less virtuous (although it may sometimes be less persuasive) to reason from one’s religious convictions than from any other comprehensive set of values, when advocating for or against public policy alternatives. We would suggest that this is generally also the case for elected representatives. ‚Thus, in our view, it would be perfectly acceptable for a member of a legislature to buttress a call for increased funding for social services by reference to Proverbs 19:17: “One who is gracious to a poor man lends to the Lord.” However, it is unconstitutional for a legislature to pass legislation for a religious purpose; therefore, legislators must recognize the distinction between advocating legislation designed to achieve a religious purpose and using religious arguments to support or oppose legislation designed to achieve a public purpose.

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Bateman on Sovereignty’s Missing Moral Imperative

C.G. Bateman (U. of British Columbia Faculty of Law) has posted Sovereignty’s Missing Moral Imperative. The abstract follows.

The following paper claims that the theoretical construct of sovereignty was not only expropriated by the Christian religion out of ancient religious beliefs – shared with them by both Jewish and Muslim traditions – but, perhaps more importantly for modern policy considerations, that it always insisted on a positive moral imperative being placed on the person or body executing it in practice.

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Ledewitz on Neutrality

Bruce Ledewitz (Duquesne University – School of Law) has posted Toward a Meaning – Full Establishment Clause Neutrality. The abstract follows.

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating theEstablishment Clause. While such morally substantive symbolic government speech is more easily justified as neutral when religious imagery is avoided, even the utilization by government of traditional religious language and symbols may be understood as neutral toward religion as long as the overall content of the public square is not religious. This more vibrant form of government neutrality invites more, rather than less, expression into public life. The article utilizes the context of legislative and high school graduation prayer to illustrate the difference between current neutrality doctrine and meaning-full neutrality.

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Bartrum on The Ministerial Exception and the Limits of Religious Sovereignty

Ian C. Bartrum (U. of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Ministerial Exception and the Limits of Religious Sovereignty. The abstract follows.

In January, the Supreme Court announced its decision in Hosanna Tabor v. EEOC and gave its official blessing to the controversial bit of doctrine known as the “ministerial exception.” The exception, which has been alive in the Circuit Courts for nearly forty years, exempts religious organizations from employment discrimination laws in the context of “ministerial” hiring decisions. Thus, such organizations are free to discriminate against ministerial employees not only on the basis of religion—which various statutory exemptions already permit—but also on the basis of race, gender, sexual orientation, and disability. Several thoughtful and well-­‐respected voices have suggested that this effectively places churches “above the law,” and in some sense these criticisms seem to ring true. The constitutional justification often offered for this state of affairs, however, is that churches are not so much above the civil law, as simply outside of its jurisdiction. That is, while we may disapprove of the ways that a church selects its leadership—indeed, we may even believe that certain hiring practices are illegal—our constitutional structure simply does not empower the government to intervene in matters of church governance. And we have structured our Constitution in this way based, in large part, on the liberal Lockean conviction that church and state operate within separate and incommensurable spheres.

Carried to its logical extreme, however, this conception of separate and independent religious sovereignty suggests that the bar to governmental intervention in church governance is absolute; that a church can do anything—including, presumably, perform sacrificial rituals—that its members believe essential to basic governance decisions. In truth, however, no one I know of holds this sort of extreme, absolutist view, and thus arises the theoretical puzzle this essay addresses. If religious sovereignty is not absolute—if the liberal check on the state’s power to invade church jurisdiction does not go “all the way down”—then where do the limits on that sovereignty lie, and how do we determine that a church has exceeded them? In what follows, I draw some lessons from Thomas Kuhn’s thoughts about the shared grounds on which scientists justify their choices between incommensurable theoretical paradigms. Ultimately, I conclude that we can and do make decisions about the scope of religious sovereignty by balancing constitutional purposes against one another in making what Kuhn called “value judgments.” In the case of the ministerial exception, it is my constitutional value judgment that racial discrimination both exceeds the limits of independent religious sovereignty, and justifies state intervention in church governance.