Posted on by Mark Movsesian

Lecture: Religious Freedom in America Today

The Lumen Christi Institute will host a lecture by our friend Rick Garnett (Notre Dame), “Religious Freedom in America Today,” in Chicago on September 26.  The description of the lecture follows. If you’re in Chicago, make sure to go. Rick is one of America’s leading law and religion scholars and always has something valuable to say. Details are here.

As President Clinton observed, “religious freedom is . . . our first freedom.” It was central to the Founders’ vision for the American political community. They did not always agree about what religious freedom means or requires, but they knew that it matters, and that it should be respected in policy and protected by law. James Madison, the Father of our Constitution, hoped that America’s religious-liberty experiment “promised a lustre to our country.” This lecture will take stock of this experiment and consider the rights of religious believers and institutions and their roles and voices in American public life today.

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Leiter, “Why Tolerate Religion?”

This October, Princeton University Press will publish Why Tolerate Religion? By Brian Leiter (University of Chicago Law School). The publisher’s description follows.

This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory–why is religion singled out for preferential treatment in both law and public discourse? Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?

In Why Tolerate Religion?, Brian Leiter argues that the reasons have nothing to do with religion, and that Western democracies are wrong to single out religious liberty for special legal protections. He offers new insights into what makes a claim of conscience distinctively “religious,” and draws on a wealth of examples from America, Europe, and elsewhere to highlight the important issues at stake. With philosophical acuity, legal insight, and wry humor, Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.

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Sarat (Ed.), “Legal Responses to Religious Practices in the United States”

Next month, Cambridge University Press will publish Legal Responses to Religious Practices in the United States, edited by Austin Sarat (Amherst College). The collection of essays includes works by Meredith Render, Paul Horwitz, Steven D. Smith and Richard W. Garnett. The publisher’s description follows.

There is an enormous scholarly literature on law’s treatment of religion. Most scholars now recognize that although the U.S. Supreme Court has not offered a consistent interpretation of what “non-establishment” or religious freedom means, as a general matter it can be said that the First Amendment requires that government not give preference to one religion over another or, although this is more controversial, to religion over non-belief. But these rules raise questions that will be addressed in Legal Responses to Religious Practices in the United States: Namely, what practices constitute a “religious activity” such that it cannot be supported or funded by government? And what is a religion, anyway? How should law understand matters of faith and accommodate religious practices?

Posted on by Mark Movsesian

Larry Gatlin and Jonathan Rauch on Christian Groups at Vanderbilt

Now there’s a pairing you don’t see everyday. Country music star Larry Gatlin and Brookings Institute scholar Jonathan Rauch both weigh in on Vanderbilt’s denial of recognition to Christian groups in this new video from the Foundation for Individual Rights in Higher Education (FIRE). Vanderbilt denied the groups recognition under its all-comers policy, which requires groups to open their leadership positions to all students, even students who disagree with the groups’ principles. In CLS v. Martinez (2010), the Supreme Court held that such a policy is consistent with the First Amendment. Many American universities have such a policy, but not all; recently, for example, SUNY-Buffalo decided to allow the local chapter of the Intervarsity Christian Fellowship to require its leaders to affirm the group’s beliefs. The FIRE video is a very good introduction to the topic; unfortunately, Vanderbilt apparently did not accept FIRE’s invitation to present its side of the story.

Posted on by Mark Movsesian

ACLU to South Carolina Public Schools: We’re Watching

The Wall Street Journal‘s Law Blog reports today that, as the new school year begins, the ACLU of South Carolina has sent a letter to public schools in the state reminding them of their constitutional duty to avoid promoting religion:

“It’s important that all students know that they’re going back to school to a place where they will be welcome no matter what they believe,” said Victoria Middleton, executive director of the ACLU of South Carolina, in a statement Monday. The group claims to have received numerous reports of religious freedom violations, including complaints that many South Carolina schools impose religion on students.

In response, South Carolina’s education superintendent accused the ACLU of trying to intimidate students from engaging in legitimate religious expression in public places. Sounds like litigation ahead.

 

Posted on by Mark Movsesian

District Court Dismisses Muslims’ Suit Against FBI Under State Secrets Doctrine

A federal district court in California ruled Tuesday that the state secrets doctrine precludes a religious-discrimination lawsuit local Muslims had filed against the FBI. Plaintiffs alleged that the FBI had violated their constitutional and civil rights by conducting “an indiscriminate ‘dragnet'” that “gathered information about them and other innocent Muslim Americans in Southern California” solely on the basis of their religion. Specifically, they alleged that the FBI had employed a covert operative to conduct surveillance of mosques and Muslims in southern California. The court ruled that litigation of plaintiffs’ claims would “require or unjustifiably risk disclosure of secret and classified information regarding the nature of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies.” The court made its decision, with obvious reluctance, on the  basis of Attorney General Eric Holder’s formal invocation of the state secrets privilege and the court’s own “skeptical” examination of the FBI’s public and classified, ex parte, submissions. Plaintiffs, represented by the ACLU, plan to appeal. The case is Fazaga v. FBI, 2012 WL 3327092 (C.D. Cal., Aug. 14, 2012).

Posted on by Mark Movsesian

DC Court of Appeals: Ministerial Exception Does Not Bar Minister’s Breach of Contract Suit Against Church

Here’s a reminder that, even after Hosanna-Tabor, the ministerial exception does not bar all lawsuits clergy bring against church employers. The DC Court of Appeals has allowed a minister’s breach of contract claim against her former congregation to go forward, notwithstanding the congregation’s claim of immunity. The Rev. Deloris Prioleau, an ordained AME pastor, had a series of one-year employment contracts with the Cornerstone AME Church in DC. When Cornerstone failed to pay Prioleau $39,000 it owed her on her final contract, she brought a breach of contract action. Last week, the DC Court of Appeals ruled that the action could proceed under the “neutral principles of law” approach. Prioleau’s suit, the court said, appeared to be “a straightforward contract case, uncomplicated by ecclesiastical considerations.” Moreover, the ministerial exception did not apply. Prioleau had not challenged Cornerstone’s “authority to hire, to fire, or to assign her duties” and did not seek “reinstatement.” (Oddly, the court did not discuss Hosanna-Tabor itself). The court ended its opinion with a warning, however:  “if it becomes apparent … that this dispute does in fact turn on matters of doctrinal interpretation or of church governance, the trial court may grant summary judgment to avoid ‘excessive entanglement with religion.'” The case is Second Episcopal District African Methodist Episcopal Church v. Prioleau, 2012 WL 3243190 (D.C. Court of Appeals, Aug. 9, 2012).

Posted on by Mark Movsesian

1st Circuit Applies Neutral Principles Approach in Church Copyright Dispute

Here’s an unusual church property dispute. The Holy Transfiguration Monastery in Brookline, Massachusetts brought a copyright infringement action against a former monk who had posted on his website English-language translations of ancient Christian texts the monastery had prepared. The former monk, now an archbishop in a different Christian communion, raised a number of copyright defenses, including fair use and non-originality. Last week, the First Circuit rejected all the archbishop’s defenses and ruled in favor of the monastery. The copyright issues are quite dense and apparently of real importance to copyright lawyers. For CLR Forum readers, though, the case is significant for its implications for church autonomy doctrine. The archbishop argued that the monastery’s statutes gave title to the texts to the monastery’s then-parent body, the Russian Orthodox Church Outside Russia, or ROCOR. (The monastery has since ended its affiliation with ROCOR). Using the neutral principles approach, the First Circuit rejected this argument. Applying “the Monastic Statutes’ plain terms,” and “without treading upon religious doctrine, church governance, and ecclesiastical laws,” title to the texts rested in the monastery, not ROCOR. The case is Society of the Holy Transfiguration Monastery, Inc. v. Gregory, 2012 WL 3125120 (1st Cir., Aug. 2, 2012).

Posted on by Mark Movsesian

Sixth Circuit: County’s Denial of Permit for Creche Violates Free Speech Clause

Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median.  In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received,  the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).

Posted on by Mark Movsesian

Get That Cross Off the City Seal

Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal avoids endorsing religion, though it does seem to endorse wooden forts.

I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the Read more