Posted on by Mark Movsesian

Commonweal on the Bishops’ Religious Freedom Statement

Over the past week, I’ve written about criticism from the Catholic right of the U.S. Conference of Catholic Bishops’ recent statement on religious freedom. Of course, there’s also been criticism from the Catholic left. This week, Commonweal has a negative editorial about the bishops’ statement. More in sorrow than in anger, Commonweal maintains that the statement veers into political partisanship. The  bishops’ simplistic, one-sided language, the editorial complains, makes them sound more like Republican party operatives than pastors. Young people already are turning away from organized religion because it seems too political and conservative on social issues. Surely the bishops do not want to exacerbate that trend?

I wonder about this criticism. It’s true that the bishops’ statement highlights the Obama Administration’s contraceptives mandate. The mandate is the first on the list of threats to religious freedom the bishops identify, and surely served as the prime motivation for their statement. But the second item on the list is state anti-immigration laws, like the recent Alabama measure forbidding assistance to undocumented immigrants. In criticizing these laws, the bishops are hardly mouthing GOP talking points. Republican politicians often favor such measures, while the Obama Administration has filed a lawsuit challenging the Alabama law.

Even with respect to the contraceptives mandate, the bishops could be forgiven for saying that they didn’t start this fight. The bishops surely knew that objecting to the HHS mandate would have the effect of highlighting the Church’s position on contraception, and that this position is unpopular, particularly with Millennials. But what choice was there? It was the Obama Administration that issued the mandate during an election year. For that matter, it was the Obama Administration that argued this Term in Hosanna-Tabor that the religion clauses did not even apply to a church’s decision to fire a minister, a position that a unanimous Court characterized as “remarkable.” If it’s inappropriately partisan for religious organizations to respond when government takes steps like these, then religious organizations can never defend themselves in public debate. That may be a good thing from a spiritual point of view, but I don’t think it’s a result Commonweal would approve.

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Outflanking the Bishops Conference on the Right

Last week, we noted  a report from the U.S. Conference of Catholic Bishops on the importance of religious freedom in America, Our First, Most Cherished Liberty: A Statement on Religious Liberty. Most of the time, one hears about dissents from the Catholic Left, which disagrees with the bishops on issues like abortion and homosexuality. Last week, though, there was a reminder that dissenters also exist on the Catholic Right.

The Society for Saint Pius X is a traditionalist Catholic body, formed around opposition to Vatican II, with an ambiguous relationship to the Church. Pope John Paul II excommunicated the society’s founder, and the society lacks canonical status, but recently the Vatican and the SSPX have been negotiating a formalization of the society’s place within the Church. It’s noteworthy, therefore, that the SSPX has responded to Our First, Most Cherished Liberty with a statement of its own. The SSPX is not impressed. In fact, it views the bishops’ statement as another example of an Americanist compromise that dilutes the Catholic faith. “Liberty,” the society asserts, is a matter of freely following the will of God, as that will is expressed in the Catholic Church; it has nothing to do with the American notion — strongly influenced, the SSPX argues, by heretical Calvinist theology — of personal freedom. It is precisely this American idea of personal freedom, the society maintains, that has led to things like the HHS contraceptives mandate. The SSPX calls on the bishops to abandon the principles of the Church’s “opponents” and return to the Church’s own.

As Rick Garnett points out over at Mirror of Justice, this argument was settled at Vatican II itself, in the Church’s Declaration on Religious Freedom, Dignitatis Humanae. I don’t know how large a movement the SSPX represents within Catholicism, though I suspect it’s fairly small. Still, it’s interesting to think of the bishops as reflecting a middle-of-the-road position — within the Catholic Church, that is.

Posted on by Mark Movsesian

Catholic Bishops Issue Report on Threats to Religious Freedom

The U.S. Conference of Catholic Bishops today issued a report, Our First, Most Cherished Liberty: A Statement on Religious Liberty, on threats to religious freedom  in America and abroad. The report lists several recent actions by the federal and state governments that endanger religious freedom — including the HHS contraception mandate, state laws that forbid assistance to illegal aliens, and moves by public universities to deny recognition to evangelical groups on campus — and discusses the persecution  suffered by religious minorities, often Christians, in other parts of the world. The report calls on clergy and lay Catholics, as well as adherents of other faiths, “to impress upon our elected representatives the importance of continued protection of religious liberty in a free society.” In particular, the report proposes that Catholic bishops in America organize a “fortnight for freedom” this summer, a fourteen-day “period of prayer, study, catechesis, and public action [to] emphasize both our Christian and American heritage of liberty.”

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The Indiana Statehouse Chapel

Last week, I spent a couple of days in Indianapolis at a roundtable on law and the Protestant Reformation directed by my friend and sometime co-author, John McGinnis of Northwestern. During a break, I walked over to the Indiana Statehouse where, much to my surprise, I discovered the Indiana Chapel — that’s its official designation, though the sign on the door (right) says “Meditation Room” — on the fourth floor. It is apparently the first statehouse chapel in the United States, and one of only six, the others being in statehouses  in Arkansas, Florida, Illinois, Kentucky, and Texas. The chapel is a small room without sectarian symbols; to me, it resembles a Victorian parlor. There is, nonetheless, a Protestant feel to the room, no doubt created by the lectern at the front with a King James Bible, the hymnal on the electric organ, and the bookcase filled with Bibles, presumably for the  Bible studies advertised on a bulletin board outside the door (below). According to this website, a private evangelical Christian group called the Capitol Commission of Indiana regularly uses the room, though it doesn’t seem other groups are excluded. I don’t know if anyone has ever thought to bring a lawsuit about the Indiana Chapel, but, assuming the room really is open to everybody on an equal basis,  I don’t think an Establishment Clause challenge  would succeed, either under the Lemon/endorsement test or Marsh v. Chambers, the legislative chaplain case. In 1988, the Seventh Circuit held that a similar non-sectarian chapel/meditation room in the Illinois state capitol did not violate the Establishment Clause.

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Griffin on Why Hosanna-Tabor Misinterprets the First Amendment

Leslie C. Griffin (University of Houston Law Center) has posted The Sins of Hosanna-Tabor.  The abstract follows.

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disabilities leave, could not pursue an antidiscrimination lawsuit against her employer. Read more

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Garnett on the Role of Religious Communities

Richard W. Garnett (Notre Dame Law School) has posted Religious Freedom and (and in) Institutions.  The abstract follows.

This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces – to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.

Posted on by Mark Movsesian

Cert Petitions Filed in Church Property Disputes

Howard Friedman at Religion Clause reports that coordinated cert petitions have been filed in three recent property disputes between national church bodies and local congregations.  Two decisions, discussed by CLR Forum here, arise from the Georgia Supreme Court; one comes from the Connecticut Supreme Court. All three cases question the application of the “neutral principles of law” doctrine, one of the two main approaches to church property disputes, which allows civil courts to resolve such disputes using regular civil law principles. The local congregations that lost these cases, two Episcopalian and one Presbyterian, are the petitioners; the national church bodies have not yet filed their responses.

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Wright on the Coercion Test and Establishment Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Why a Coercion Test is of No Value in Establishment Clause Cases.  The abstract follows.

Courts have increasingly referred to some sort of ‘coercion’ test in resolving Establishment Clause cases. This is not surprising, given the references to coercion in other areas of the law, and the serious criticism received by other, familiar Establishment Clause tests. As it turns out, though, the literature of the social sciences and humanities, and of philosophy especially, show, initially, the discouraging complexity of trying to rely on any form of coercion test in the Establishment Clause cases.

The crucial problem, however, is not precisely one of the complexity, in this context, of the idea of coercion. Rather, the idea of coercion turns out to be remarkably unclear, open, and in various ways crucially undeveloped and incomplete. Read more

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Miller, “The Religious Roots of the First Amendment”

This year, Oxford University Press will publish The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (forthcoming May 2012) by Nicholas P. Miller (Seventh–Day Adventist Theological Seminary).  The publisher’s description follows.

Traditional understandings of the genesis of the separation of church and state rest on assumptions about ‘Enlightenment’ and the republican ethos of citizenship. Nicholas Miller does not seek to dislodge that interpretation but to augment and enrich it by recovering its cultural and discursive religious contexts – specifically the discourse of Protestant dissent. He argues that commitments by certain dissenting Protestants to the right of private judgment in matters of Biblical interpretation, an outgrowth of the doctrine of the priesthood of all believers, helped promote religious disestablishment in the early modern West. This movement climaxed in the disestablishment of religion in the early American colonies and nation. Miller identifies a continuous strand of this religious thought from the Protestant Reformation, across Europe, through the English Reformation, Civil War, and Restoration, into the American colonies. He examines seven key thinkers who played a major role in the development of this religious trajectory as it came to fruition in American political and legal history: William Penn, John Locke, Elisha Williams, Isaac Backus, William Livingston, John Witherspoon, and James Madison. Miller shows that the separation of church and state can be read, most persuasively, as the triumph of a particular strand of Protestant nonconformity – that which stretched back to the Puritan separatist and the Restoration sects, rather than to those, like Presbyterians, who sought to replace the ‘wrong’ church establishment with their own, ‘right’ one. The Religious Roots of the First Amendment contributes powerfully to the current trend among some historians to rescue the eighteenth-century clergymen and religious controversialists from the enormous condescension of posterity.

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Helfand on Litigating Religion

Michael A. Helfand (Pepperdine University School of Law) has posted a very interesting article, Litigating Religion.  In an earlier liveblogging post, Professor DeGirolami discussed Professor Helfand’s talk drawn from the paper at the Religious Legal Theory Conference.  The abstract of the article follows.

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating religion. Read more