Posted on by Mark Movsesian

Military Allows Chaplain to Keep Beard

This morning, Rabbi Menachem Stern, a Chabad Lubavitch rabbi, will join the U.S. Army Chaplain Corps. It wasn’t always clear he could. Like other Hasidic Jews, Rabbi Stern interprets a passage from Leviticus to require men to wear beards. Army regulations generally forbid beards. Rabbi Stern sued, arguing that the no-beards rule, as applied to a Hasidic Jew like him, violated the Free Exercise Clause. The Army settled the case and granted Stern a waiver, as it has done for Sikh and Muslim soldiers whose religious beliefs also require them to wear beards.

I haven’t seen Rabbi Stern’s complaint, but I imagine he relied heavily on then-Judge Alito’s famous decision in Fraternal Order of Police v. City of Newark (3d Cir. 1999), which struck down a police department’s no-beards rule. The rule exempted police officers who grew beards for medical reasons, but not those who grew beards for religious reasons. Alito concluded that denying an exemption for religious reasons, while allowing an exemption for secular reasons, violated the Free Exercise Clause. Like the police department regulations in Fraternal Order of Police, Army regulations appear to allow soldiers to wear beards if a medical condition requires it.

Posted on by Marc O. DeGirolami

Democratic Dissensus on Insurance Coverage Religious Exemption

An interesting story here about internal dissensus between President Obama and several Democrats in the House.  The issue is that under the new health insurance regulations which are part of the health care overhaul, all employers are required to cover contraceptives for women free of charge as well as certain types of medical sterilization, and there is disagreement both about whether there should be any exemption at all for religious employers and, if so, about how broad the exemption should be. 

It appears from the story that the President is at least somewhat favorably disposed to a broader exemption — one which might protect not only churches but also religiously affiliated schools, hospitals, and other religious organizations — while House Democrats are opposed to that enlargement and possibly to any exemption at all (such a position would mean that the Catholic Church, for example, would be compelled to cover contraceptive devices free of charge for its employees).  As an unnamed Senate Democrat who participated in the discussions is reported to have noted, “This is a pro-choice president. It’s a surprise that we are even having this debate with the administration.”  It will be interesting to see how this plays out, but I’m fairly confident of one thing: much as I respect Senator Hatch, I do not believe that any exemption is constitutionally required under the Free Exercise Clause as interpreted under current doctrine.

Posted on by Marc O. DeGirolami

Magarian on Justice Stevens’s Religion Clause Jurisprudence

Gregory P. Magarian (Wash. U. St. Louis, and a former law clerk to Justice John Paul Stevens) has posted Justice Stevens, Religion, and Civil Society.  The abstract follows.  — MOD

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This Article debunks that conventional analysis and offers a new explanation of Justice Stevens‘s religion jurisprudence. The Article shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions‘ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions‘ coercive power over individuals. Second, he viewed civil society institutions‘ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. This descriptive insight permits a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. The Article finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. The Article finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.

Posted on by Marc O. DeGirolami

Campbell on 19th Century Approaches to Religious Exemptions

Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases.  The abstract follows.  — MOD

Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores.  Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.

Posted on by

Robinson on Rationalizing Religious Exemptions

Zoe Robinson (DePaul University College of Law) has posted Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion. The abstract follows. – ARH

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation – in terms of constituent voting support – against the costs borne. By modeling legislative accommodations as the result of benefit-maximizing behavior, the Article is proposing a significant paradigm shift that postulates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.

Posted on by

More on Lund and Anti-Catholicism Redux

As my colleague, Andrew Hamilton notes below, Christopher C. Lund of Wayne State University School of Law will soon publish The New Victims of the Old Anti-Catholicism in the Connecticut Law Review.  Having read Prof. Lund’s paper, I would like to complement Andrew’s post by detailing Lund’s claims.

Lund links the attitude underlying 21st-century, religious-freedom jurisprudence with the both popular and legal anti-Catholic prejudice that pervaded the United States in the 19th-century—yet he does so without examining any recent case brought by a Catholic.

Nevertheless, in the four cases Lund examines, the plaintiffs’ status as members of a religious minority—or an a-religious one—and their struggle for legal recognition bridge this apparent divide.  In other words, like 19th-century Catholics, all of the cases involve plaintiffs in a religious minority seeking recognition of their beliefs and practices as legal rights under the Free Exercise and Establishment clauses.  Thus, Lund connects a present-day American Wiccan, Muslim, Evangelical Protestant, and Atheist to Catholics in America one-hundred-fifty-years ago.  More poignantly, in each contemporary case the plaintiff lost—outcomes that erode the idealistic notion that American legal and popular tolerance of minority religions expands with time.

For a description of each of the four cases Lund examines—and their significance—please follow the jump. Read more

Posted on by

Justifying Rights: The Dual Importance of Freedom and Virtue

Linda C. McClain and James E. Fleming, both of Boston University School of Law, have published Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights.  The paper draws on the works of Dworkin (and other giants in liberal political theory such as Rawls) to critique the “communitarian” or “civic-republican”  perspective of Michael J. Sandel’s bestseller, Justice: What’s the Right Thing to do? (2009).  Professor Sandel rejects values-neutral conceptions of legal justice in socio-moral debates like that concerning the validity of gay marriage—arguments that emphasize individual freedom to act; rather, he argues that only arguments with a full-fledged consciousness of the actual, moral virtues—or lack of them—that such social institutions embody will satisfactorily resolve these cultural conflicts.

In contrast, McClain and Fleming argue that both values-neutral and values-based arguments—arguments for individual freedom of action as well as arguments about the virtue embodied in social institutions like marriage—have and will be instrumental to resolving such questions.  Please see the authors’ abstract after the jump:

Read more

Posted on by

Grover on Religious Exemptions to the Patient Protection and Affordable Care Act

Samuel T. Grover (a student at Boston University School of Law) has posted Religious Conscience Exemptions to the PPACA Health Insurance Mandate. The abstract follows.—YAH

Within the Patient Protection and Affordable Care Act (“PPACA” of the “Act”), the individual health insurance mandate (“individual mandate”) – the provision which dictates that in 2014 and beyond all citizens must either have a form of health insurance or pay a tax penalty – has already been subjected to a number of constitutional challenges. The 3rd, 4th, 6th, and 11th Circuits have all heard challenges brought on similar grounds, with largely inconsistent results. While the focus of much of this litigation has centered around whether the individual mandate is a constitutional extension of Congress’s taxing power, this paper sets aside the Commerce Clause question that has demanded so much attention from the courts and asks instead whether the two religious exemptions written into the PPACA have struck an appropriate balance between the Constitution’s Religion Clauses. The paper argues that as currently drafted, the “religious conscience exemption” to the PPACA’s individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges on Free Exercise and Establishment Clause grounds.

This paper begins by analyzing the history behind the first of two religious exemptions written into the individual mandate, the religious conscience exemption, which allows certain religious individuals to avoid the individual mandate’s tax penalty without acquiring health insurance. The language of the exemption was taken directly from an existing religious conscience exemption to Social Security, designed to apply narrowly to the Old Order Amish. Because the purposes and goals of the PPACA differ from those of Social Security, this paper argues that it was unwise to write this same religious exemption into the PPACA.  Read more

Posted on by

Griffin on the Cases Against the Ministerial Exception

Leslie G. Griffin (University of Houston Law Center) has posted Ordained Discrimination: The Cases Against the Ministerial Exception.  The abstract follows. – ARH

On October 5, 2011 the Supreme Court will hear oral arguments in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Hosanna-Tabor involves 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 Fifth Circuit created the ministerial exception in 1972 when it dismissed Mrs. Billie McClure’s equal pay lawsuit against the Salvation Army. Since then, the federal and state courts have repeatedly expanded the exception to reject lawsuits by elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, and communications managers alleging violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers’ Compensation laws and numerous state tort and contract laws.

Read more

Posted on by

Corbin on the Irony of Hosanna-Tabor Evangelical Lutheran Church

Caroline Mala Corbin (University of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. The abstract follows. – ARH

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.

In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.