Posted on by Mark Movsesian · 14 Comments

Chick-fil-A and the Coming Clash

That was fast. Last week, Mayor Thomas Menino announced that, because of COO Dan Cathy’s comments in favor of traditional marriage, Boston would not allow Chick-fil-A to open any restaurants in that city. Chicago Mayor Rahm Emanuel followed with similar statements. “Chick-fil-A values are not Chicago values,” he declared. The response from commentators on both the left and right was uniform and swift. Government cannot deny licenses because businesses express political opinions with which government disagrees: that’s what the Free Speech Clause is about. By this week, Menino had backed down, and New York’s Mayor Mike Bloomberg, a supporter of same-sex marriage, had distanced his city from the anti-Chick-fil-A campaign. The crusade to shut down Chick-fil-A seems to have ended, at least for now.

Consumers have every right to organize a boycott because they disapprove of what a firm’s COO has to say. Such boycotts typically fail, however, because of collective action problems. It’s hard to organize these things; most consumers simply don’t care enough about politics to have it drive their purchasing decisions. In the 1990s, conservatives failed when they tried to boycott Disney because of its support for gay rights, and liberals failed when they tried to Read more

Posted on by Mark Movsesian

Yesterday’s High School Graduation Ruling: Three Quick Observations

As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.” 

The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner.  I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:

• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Read more

Posted on by Mark Movsesian

Virginia Ten Commandments Case Settles

A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.

Posted on by Mark Movsesian · 1 Comment

Justifying Religious Freedom: Three Observations

I’ve been mulling over Steve’s very thoughtful posts (here and here) on the need to find persuasive justifications for religious freedom in America today. Although the Constitution expressly singles out religious freedom for protection, a new movement in the academy denies that religion merits such protection. The theological notions that support religious freedom do not have a place in contemporary liberal politics, the argument goes; religious freedom is thus a kind of anachronism. Although Steve doesn’t agree, he suggests that those of us who value religious freedom develop new, secular justifications to respond to this movement, and he offers one such justification, a “social contract” argument that I find very persuasive, as a start.

Steve, Marc, and others who have commented here and on other sites know more about this than I, and I hesitate a bit to offer my own thoughts. But I do co-host this website, so here are three observations: one optimistic, one (I hope) constructive, and one pessimistic.

First, notwithstanding the fact that some very serious scholars, and the Obama Justice Department, have argued that religious freedom no longer merits special protection, I doubt the American public shares that view. There’s going to be a fight, no question, and we may as well be ready. But the idea that religious freedom has special importance, and merits special protection, is deeply rooted in America’s self-image. (In recent surveys, large majorities even of secular Americans agree that religion has had a good influence on American life). As Steve says, the  commitment to religious freedom is part of our social contract and I don’t think it’s going to fade away. If p0liticians try to make the “religious freedom is an anachronism” argument, I suspect they will fail. When the Obama Adminstration argued in Hosanna-Tabor that religious freedom deserved no special protection, the Court unanimously disagreed.

Second, if one were looking for a secular justification for religious freedom, it seems to me that providing a check on state power is a pretty good one. Pluralism is the best guarantor of political freedom, and pluralism requires that the state have competitors. In Western history, nothing has proved a stronger competitor for the state than religion and, specifically, Christianity. Because of its unique capacity to encourage commitment, religion has provided a counterweight to state power since – well, since the late Roman Empire. Even people of no faith — in fact, even people who are hostile to religious belief as such — should be able to see this benefit of religion.

My third observation is the pessimistic one. This summer, I’ve been reading Ross Douthat’s great new book, Bad Religion, on the state of American Christianity. I’ll be writing more about Douthat’s book shortly, but, briefly, he argues that the consensus, “mere Christianity” that traditionally provided the vocabulary for public debate in America has all but disappeared. Propositions that until recently would have been seen as just “common sense” are easily dismissed today, by more and more people, as “sectarian.” As I say, I don’t think that most Americans view religious freedom as “sectarian,” and I don’t think they will anytime soon. But I’ll admit that Douthat’s book has made me a little more doubtful about this.

Posted on by Mark Movsesian · 1 Comment

Walter Russell Mead on Christianity and America’s Elites

For Americans of the Framing generation, it was axiomatic that religion–which, for them, meant Protestant Christianity–was essential to the functioning of a republic. Without Christian morality, they believed, self-government would be impossible. They worried about establishments, of course, but very few would have argued that a republic could survive without a religious citizenry. Indeed, even with a religious citizenry, they thought restraints were necessary. As Richard Hofstadter famously argued, the Constitution’s structure of checks and balances owes much to Calvinist conceptions of Original Sin and its consequences. The conviction that people are ultimately flawed and self-seeking explains the intricate mechanisms for impeding the will of democratic majorities. The Framers were not utopians.

One doesn’t hear these sentiments expressed too much nowadays. Many more Americans are atheists, and non-Christians, than at the Framing, and everybody knows believers have no monopoly on ethical behavior. That may be why this recent column by Walter Russell Mead has hit such a nerve. Mead argues, in a way that would have been very familiar to Washington, Hamilton, and their contemporaries, that the fading of Christianity among America’s elites has had a very bad influence on national life, and that America must recapture a sense of Christian humility if it is to meet its current challenges. The whole thing is worth reading, but here’s a representative sample. CLR Forum readers, any thoughts?

I do not say that a “Christian” or theistic meritocracy would work where a secular one must fail. (We had a Christian meritocracy in Puritan New England. The best, brightest and godliest hanged Quakers and witches.) And I repeat what I wrote earlier, to avoid misunderstanding: Christianity is not the only religious or other source of the kind of moral insight and spiritual depth that can mitigate the problems of a meritocratic society. It is the one I understand best and the one that, historically, has played the most important role in American life. I leave to others the task of describing other resources and traditions by which other Americans whose talents have brought them into important and powerful positions in our society can be guided and checked.

But with those appropriate reservations appropriately taken, I do say that the fading of serious Christian commitment in the sleek and successful ranks of America’s meritocracy plays a significant and damaging role in our national life. The renewal of Christian commitment among a significant sector of America’s elite is, I think, a necessary condition of continued American progress and success.  If we get this, we will still need social reforms and social change . . . . But if we don’t get that kind of renewal and commitment, no program of reform, however wisely engineered, can keep our liberty, our prosperity and our democracy safe, much less transform them into something richer, deeper, greater and more widely and fairly shared than anything we have yet seen.

Posted on by rbonham1

The Dis-integration of Neutrality

Neutrality has been the central theme in the modern jurisprudence and literature of religious freedom.  Government is supposed to be religiously neutral, neither favoring nor opposing (coercively, materially, or expressively) any particular religion or religion in general.

The ideal has also been subjected to severe criticism.  One criticism asserts that neutrality is impossible: governments will inevitably adopt some religious (or anti-religious) positions and reject others.  Indeed, since religious views differ as to the acceptability of governmental neutrality, the very endorsement of neutrality is already a departure from neutrality.

One response to this sort of criticism is to “spread out”– or to multiply versions of neutrality.  Like the sorcerer’s hapless apprentice, the critic applies the hatchet to what he takes to be the mischievous broom of neutrality only to find that, far from having dispatched the mischief, he is now faced with two– or several, or many– more vigorous instantiations.

Thus, in a recent illuminating article called “Crosses and Culture” (I would provide a link if I knew how), Mark Movsesian discerns in American jurisprudence three versions of neutrality, which he calls “neutrality as non-proselytism,” “neutrality as non- Read more

Posted on by Marc O. DeGirolami

Review of Steven Green’s Book

I’ve got a review up over at The New Republic on line of Steven Green’s fine book, The Bible, the School, and the Constitution: The Clash that Shaped Modern Church-State Doctrine (OUP 2012).

Posted on by Mark Movsesian

Religious Groups Still Oppose Health Care Law

In the “Generalissimo Francisco Franco Is Still Dead” category, the Wall Street Journal reports that religious groups suing the Administration over the ACA’s contraceptive mandate are continuing with their lawsuits, notwithstanding today’s Supreme Court decision upholding the constitutionality of the statute. No surprise there: today’s decision didn’t address the groups’ First Amendment claims.

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Rahdert on Trends in Taxpayer Standing to Challenge the Establishment Clause

Mark Rahdert (Temple University – James E. Beasley School of Law) has posted Court Reform and Breathing Space Under the Establishment Clause. The abstract follows.  

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from ReligionFoundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the Establishment Clause?
Read more

Posted on by Mark Movsesian

Seventh Circuit Says Hein Applies to State Funding Decisions

I posted about a Sixth Circuit case last week applying Hein‘s restrictive standing doctrine to dismiss an Establishment Clause challenge to a federal spending decision. Yesterday, the Seventh Circuit applied Hein to dismiss an Establishment Clause challenge to a state spending decision. An Illinois state agency had approved a $20,000 grant to a private organization, “Friends of the Cross,” to help restore the Bald Knob Cross, a local tourist attraction. Plaintiff brought suit, arguing that the grant failed the endorsement test, and claiming standing as an Illinois taxpayer.

The Seventh Circuit dismissed the challenge on standing grounds. Hein limited taxpayer standing to cases alleging specific legislative appropriations, not executive decisions, the court explained, and this limit applied to state as well as federal spending decisions. Here, the legislature had appropriated a $5 million lump sum for “member initiatives”; following Illinois tradition, a single legislator had requested that the executive direct part of the grant to the Friends, and the executive had complied.  Because the ultimate decision to fund the Friends had come from the executive branch, the court ruled, plaintiff lacked standing to challenge it under Hein. The case is Sherman v. Illinois, 2012 WL 1970592 (7th Cir. June 4, 2012).