Around the Web

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

Around the Web

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

Around the Web

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

Around the Web

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

Around the Web

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

Around the Web

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

Corvino et al., “Debating Religious Liberty and Discrimination”

Now here’s something you don’t see everyday: a book from a major university press, written jointly by people on opposite sides, on the conflict between religious freedom and anti-discrimination laws. The book is Debating Religious Liberty and Discrimination (Oxford), by LGBT rights advocate John Corvino (Wayne State) and two social conservatives, Ryan Anderson (Heritage Foundation) and Sherif Girgis (PhD Candidate at Princeton). Here’s the description from the Oxford website:

9780190603076Virtually everyone supports religious liberty, and virtually everyone opposes discrimination. But how do we handle the hard questions that arise when exercises of religious liberty seem to discriminate unjustly? How do we promote the common good while respecting conscience in a diverse society?

This point-counterpoint book brings together leading voices in the culture wars to debate such questions: John Corvino, a longtime LGBT-rights advocate, opposite Ryan T. Anderson and Sherif Girgis, prominent young social conservatives.

Many such questions have arisen in response to same-sex marriage: How should we treat county clerks who do not wish to authorize such marriages, for example; or bakers, florists, and photographers who do not wish to provide same-sex wedding services? But the conflicts extend well beyond the LGBT rights arena. How should we treat hospitals, schools, and adoption agencies that can’t in conscience follow antidiscrimination laws, healthcare mandates, and other regulations? Should corporations ever get exemptions? Should public officials?

Should we keep controversial laws like the Religious Freedom Restoration Act, or pass new ones like the First Amendment Defense Act? Should the law give religion and conscience special protection at all, and if so, why? What counts as discrimination, and when is it unjust? What kinds of material and dignitary harms should the law try to fight-and what is dignitary harm, anyway?

Beyond the law, how should we treat religious beliefs and practices we find mistaken or even oppressive? Should we tolerate them or actively discourage them?

In point-counterpoint format, Corvino, Anderson and Girgis explore these questions and more. Although their differences run deep, they tackle them with civility, clarity, and flair. Their debate is an essential contribution to contemporary discussions about why religious liberty matters and what respecting it requires.

“Weaponizing”

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter’s recent post: “What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.”

One might have thought, even relatively recently, that religious freedom was a “civil right.” But no longer: it is now said to be the enemy of “civil rights.” And I suppose that what is “weaponized” will depend on one’s perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state’s interest in vindicating specific sorts of dignitarian harms, that have been “weaponized.” But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here’s how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I’ll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.

Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Weller et al., “Religion or Belief, Discrimination and Equality”

In May, Bloomsbury Academic Publishing will release “Religion or Belief, Discrimination and Equality: Britain in Global Contexts” by Paul Weller (University of Derby), Kingsley Purdam (University of Manchester), Nazila Ghanea (University of Oxford), Sariya Cheruvallil-Contractor (University of Derby).  The publisher’s description follows:

Religion Or BeliefIn recent years, controversial issues related to religion or belief, discrimination, equality and human rights have come to the fore, especially in the context of public debates around multiculturalism following the ‘social policy shock’ created by the impact of violent religious extremism. For example should there be restrictions on what people can wear in the work place based on their religious identity? Should religious organizations be exempt from aspects of equalities legislation which are not in line with their beliefs and values? How should non-religious identities be recognized?

In the context of increasing cultural and religion or belief diversity, it is vitally important for the future to understand the nature and extent of discrimination and unfair treatment on the grounds of religion or belief, and to assess the adequacy of policies, practices and laws designed to tackle this. This includes the overlap of religion or belief identities with other aspects of people’s identity including characteristics such as age, disability, race, sex and sexual orientation which can also be legally protected.

This volume is a benchmark publication on religion, discrimination and equality. It includes data and insights derived from the fieldwork, focus groups and questionnaire survey of a recent national research project in Britain. Its analysis presents a unique insight into continuity and change in people’s reported experience over a decade of equalities legislation and political and social change of unfair treatment on the basis of religion or belief. Grounded in empirical and contextualized data, its findings are placed in the context of European and international human rights law.

Its findings will be of special interest to both scholars and practitioners working in the specific fields of education, employment, the media, criminal justice and immigration, housing, health care, social services, and funding, as well as in the broader fields of religion or belief, the law and public policy.

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