Around the Web

Some important law-and-religion stories from around the web:

Zempi & Awan, “Islamophobia”

Last month, Policy Press released Islamophobia: Lived Experiences of Online and Offline Victimisation by Dr. Irene Zempi (Nottingham Trent University) and Imran Awan (Birmingham City University). The publisher’s description follows:

islamophobiaIslamophobia examines the online and offline experiences of hate crime against Muslims, and the impact upon victims, their families and wider communities. Based on the first national hate crime study to examine the nature, extent and determinants of Muslim victims of hate crime in the virtual and physical worlds, it highlights the multidimensional relationship between online and offline anti-Muslim attacks, especially in a global context. It includes the voices of victims themselves which leads to a more nuanced understanding of anti-Muslim hate crime and prevention of future anti-Muslim hate crime as well as strategies for future prevention.

An Awful Report by the USCCR

I have a post up at Law and Liberty on the recent report of the U.S. Commission on Civil Rights, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” It is not positive. A bit:

The recommendations begin with the ominous observation that civil rights protections ensuring nondiscrimination “are of preeminent importance in American jurisprudence.” Preeminent over what, exactly? That quickly becomes crystal clear: over religious freedom. Supreme Court decisions that the commissioners celebrate for reflecting this preeminence include Christian Legal Society v. Martinez (2011), EEOC v. Abercrombie and Fitch (2015), and Obergefell v. Hodges (2015). It is telling that the commission includes Abercrombie and Fitchan utterly unremarkable case involving the interpretation of the standard for an employer’s state of mind in a disparate treatment action under Title VII—because it thereby squeezes and deforms religious freedom into the only framework it can accept or understand: nondiscrimination.

After this, we are treated to the following hodgepodge of inanity: “Schools must be allowed to insist on inclusive values.” Apparently this is meant as a defense of Martinez; but it ought to read, “schools must be allowed to insist that everybody espouse the values we have canonized.”

The commissioners go on to say that “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”Really? Is this statement made in promotion of “peaceful coexistence” and “reconciliation”? It sounds more like a crude bit of pseudo-history capped by a fairly direct threat.

 

Richard Epstein and Me on the Freedom of Association and Antidiscrimination Measures

Over at the Library of Law and Liberty blog, the formidable Richard Epstein (NYU/Chicago) has a long essay titled, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation.

It was an honor to respond to Professor Epstein’s essay in this comment, in which I investigate some causes of the classical liberal retreat. Other responses by Professor Andrew Koppelman and Professor Paul Moreno will follow. A bit from the beginning of mine:

Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.

As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste.[1] Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.

Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.

What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?

Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.

Neutrality Partiality

I have a short essay on the Library of Law and Liberty site involving the idea of religious neutrality when it comes to American public and private education. It was occasioned in part by the Colorado Supreme Court’s recent decision invalidating, pursuant to its state Blaine Amendment, a local program that would have made tuition scholarships available to certain students, which the students could then use to pay to attend private religious and nonreligious schools. I criticize the decision but use it to talk about certain broader issues. Here’s a bit from the conclusion:

Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.

The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.

To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.

Supreme Court Rules Against Abercrombie & Fitch in Headscarf Case

The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.”  The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.

The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.

One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub- sequent “fail[ure] . . . to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”

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