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Gill, “An Argument for Same-Sex Marriage”

Last Month, Georgetown University Press published An Argument for Same-Sex Marriage: Religious Freedom, Sexual Freedom, and Public Expressions of Civic Equality by Emily R. Gill (Bradley University). The publisher’s description follows.

The relationship between religious belief and sexuality as personal attributes exhibits some provocative comparisons. Despite the nonestablishment of religion in the United States and the constitutional guarantee of free exercise, Christianity functions as the religious and moral standard in America. Ethical views that do not fit within this consensus often go unrecognized as moral values. Similarly, in the realm of sexual orientation, heterosexuality is seen as the yardstick by which sexual practices are measured. The notion that “alternative” sexual practices like homosexuality could possess ethical significance is often overlooked or ignored.

In her new book, An Argument for Same-Sex Marriage, political scientist Emily Gill draws an extended comparison between religious belief and sexuality, both central components of one’s personal identity. Using the religion clause of the First Amendment as a foundation, Gill contends that, just as US law and policy ensure that citizens may express religious beliefs as they see fit, it should also ensure that citizens may marry as they see fit. Civil marriage, according to Gill, is a public institution, and the exclusion of some couples from a state institution is a public expression of civic inequality. Read more

Posted on by ddrakeman

Things That Aren’t on Enough Church-State Syllabi: Part III — Federally Funded Evangelism

Colonel Johnson of my last post was not only center stage for the country’s first big law and religion debate, he was also in the middle of the most amazing non-event in American church-state history.  Running short of cash, Johnson turned his Kentucky property into the site of one of the many federally-funded boarding schools where young Native American boys would be “Christianized” and “civilized.”  Every presidential administration from George Washington until the 20th century had some sort of effort to “civilize” the Indians, with James Madison helping to launch the school project.

Johnson partnered with the Baptist General Convention for Missionary Purposes, since the schools were invariably run by missionary organizations.  At one point, the War Department complained that the Kentucky Colonel’s school wasn’t properly recognizing the Sabbath.  After becoming famous for his reports decrying any federal cognizance of religion – especially relating to the Sabbath – what did he do?  He wrote to the Baptist minister running the school to complain about the apologies he had to make in Washington.  Johnson promised that these “irregularities” had been corrected, and the War Department would get the full Christianizing benefits it was paying for.

Isn’t it remarkable that this civilization process endured for a century without any church-state controversy?  Even President Grant, famous for his speech about keeping church and state “forever separate,” awarded control of part of the federal Indian agency to the Society of Friends, saying, “If you can make Quakers out of the Indians it will take the fight out of them.”

Church-state issues didn’t arise until late in the 19th century, when Catholic schools ended up with the lion’s share of the $3.8 million annual budget.  Only then did all the previous Protestant beneficiaries decide to call for an end to funding “sectarian” schools.  An interesting account is in R. Pierce Beaver, Church, State and the American Indians (1966).

It seems to me that we simply can’t talk about 20th century school-aid cases without paying attention to this remarkable history.

Don Drakeman

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Bradley, “Essays on Law, Religion, and Morality”

This month, St. Augustine’s Press will publish Essays on Law, Religion, and Morality by Gerard V. Bradley (University of Notre Dame Law School). The publisher’s description follows.

The most controversial foundational issue today in both legal philosophy and constitutional law is the relationship between objective moral norms and the positive law. Is it possible for the state to be morally “neutral” about such matters as marriage, the family, religion, religious liberty, and – as the Supreme Court once famously phrased it – “the meaning of life”? If such neutrality is possible, is it desirable? Read more

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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

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

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 · 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 Marc O. DeGirolami

Eleventh Circuit: No Free Exercise Right to Cling to Your Guns and Religion

It can’t possibly top Mark’s Pussy Riot post, but here’s an unusual case out of the Eleventh Circuit.  In 2010, the state of Georgia passed a statute prohibiting the carrying of weapons or “long guns” in certain public venues.  One of these eight designated locations in this Carry Law was a “place of worship.”  Two individual plaintiffs claim that they “regularly attend religious services, possess a weapons carry license, and ‘would like to carry a handgun’ while in a place of worship.”  The complaint alleges violations of the Free Exercise Clause and the Second Amendment.

The Eleventh Circuit tossed the case.  “The Supreme Court has reiterated time and time again that personal preferences and secular beliefs do not warrant the protection of the Free Exercise Clause,” it said.  The Court held that it had searched the complaint for any allegation that the Carry Law violated a sincerely held religious belief of the plaintiffs, but to no avail.  “That Plaintiffs ‘would like’ to carry a firearm in order to be able to act in ‘self-defense’ is a personal preference, motivated by a secular purpose . . . . [T]here is no First Amendment protection for personal preferences; nor is there protection for secular beliefs.”

The Second Amendment claim was also dismissed.  The case is Georgiacarry.org, Inc. v. Georgia, 2012 WL 2947817 (11th Cir. July 20, 2012).

Posted on by Mark Movsesian

District Court Grants TRO in Favor of Tennessee Mosque

On Wednesday, a federal district court in Tennessee ordered local officials to grant an occupancy permit to a controversial mosque in that state. Construction of the mosque, in the city of Murfreesboro in Rutherford County, has been tied up in litigation for years; some neighbors have been very hostile, to put it politely, to the presence of a mosque in their city. The mosque’s opponents won a victory last month, when a state court barred the issuance of an occupancy permit for the mosque, ruling that the Rutherford County zoning board that had approved construction had violated the state’s open meetings law. The mosque and DOJ then sued the county in federal court, arguing that denial of the permit violated both the Free Exercise Clause and RLUIPA. On Wednesday, in the DOJ lawsuit, the federal court issued a TRO requiring the county to grant the occupancy permit in time for the start of Ramadan yesterday. For a detailed account of the litigation, see this article in the New York Times. The case is US v. Rutherford County (M.D. Tenn., July 18, 2012) (H/T: Religion Clause).