Alidadi, “Religion, Equality and Employment in Europe”

In June, Hart Publishing will release “Religion, Equality and Employment in Europe: The Case for Reasonable Accommodation,” by Katayoun Alidadi (Bryant University).  The publisher’s description follows:

The management of religious and ideological diversity remains a key challenge of our time, deeply entangled with debates about the nature of liberal democracy, 9781509911387equality, social cohesion, minorities and nationalism, foreign policy and even terrorism. This book explores this challenge at the level of the workplace in Europe. People do not surrender their religion of belief at the gates of the workplace, nor should they be required to do so. But what are the limits of accommodating religious belief in the work place, particularly when it clashes with other fundamental rights and freedoms? Using a comparative and socio-legal approach that emphasises the practical role of human rights, anti-discrimination and employment protection, this book argues for an enforceable right to reasonable accommodation on the grounds of religion or belief in the workplaces in Europe. In so doing, it draws on the case law of Europe’s two supranational courts, three country studies–Belgium, the Netherlands and the UK–as well as developments in the US and Canada. By offering the first book-length treatment of the issue, it will be of significant interest to academics, policy-makers and students interested in a deeper understanding of European and Western inclusion, freedom and equality in a multicultural context.

Symposium Papers on Law and Religion in an Increasingly Polarized America

The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.

I’ve got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side.

An Awful Report by the USCCR

I have a post up at Law and Liberty on the recent report of the U.S. Commission on Civil Rights, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” It is not positive. A bit:

The recommendations begin with the ominous observation that civil rights protections ensuring nondiscrimination “are of preeminent importance in American jurisprudence.” Preeminent over what, exactly? That quickly becomes crystal clear: over religious freedom. Supreme Court decisions that the commissioners celebrate for reflecting this preeminence include Christian Legal Society v. Martinez (2011), EEOC v. Abercrombie and Fitch (2015), and Obergefell v. Hodges (2015). It is telling that the commission includes Abercrombie and Fitchan utterly unremarkable case involving the interpretation of the standard for an employer’s state of mind in a disparate treatment action under Title VII—because it thereby squeezes and deforms religious freedom into the only framework it can accept or understand: nondiscrimination.

After this, we are treated to the following hodgepodge of inanity: “Schools must be allowed to insist on inclusive values.” Apparently this is meant as a defense of Martinez; but it ought to read, “schools must be allowed to insist that everybody espouse the values we have canonized.”

The commissioners go on to say that “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”Really? Is this statement made in promotion of “peaceful coexistence” and “reconciliation”? It sounds more like a crude bit of pseudo-history capped by a fairly direct threat.


Rakove: Free Exercise and Interior Belief

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Jack Rakove (Stanford) responds to Muñoz. For other posts in this series, please click here

I agree substantially with the arguments that Professor Muñoz presents in his post and the essay from which it is drawn—so much, in fact, that I believe some of his points deserve further elaboration.

The first and arguably most important of these relates to the rationale for identifying the exercise of religious conscience as a natural right over which the state can claim no plausible jurisdiction. Why is this a legitimate claim? In my view, the founding era’s understanding of this claim rests on a fundamentally (but not fundamentalist) Protestant view of the essential nature of religious activity. The essence of religious conscience is a matter of interior conviction and persuasion, pivoting on conceptions of soteriology and ecclesiology that each of us—male and female the deity created them both, and parents and children, too—must come to individually. The exercise of religious conscience is is a natural right in the proper sense of the term, because it depends primarily on the interior nature of human belief, properly understood. The right to exercise that power can never be sacrificed to another person or institution, nor do the state or religious institutions possess any authority superior to the moral capacity each of us retains as individuals. Of course, applying the doctrine of compelle intrare might force willful individuals to consider religious beliefs they would otherwise ignore or renounce; but compulsion alone can never secure belief.

The corollary of this is that the dominant religious experiences of eighteenth-century Americans were neither legalistic nor liturgical in nature; they thus varied, in significant ways, from the religious experiences of adherents of the Church of Rome, as well of course from those of Jews and Moslems. This is not to deny the extent to which religious values infused significant chunks of American law. It only suggests that the experience of religiosity was primarily about the inculcation of faith. When founding era Americans thought about the essential nature of religious experience, this was their dominant concern. And the conviction that the right to make decisions of conscience belonged solely to individual, free from the regulatory power of the state, was (as Chris Beneke argues, I think persuasively, in his book Beyond Toleration) widely accepted before the Revolution. Advanced thinkers like Thomas Jefferson and James Madison—drawing on John Locke but also consciously going beyond him—provided a powerful constitutional rationale for this belief in the 1770s and 1780s, but they were providing an enlightened justification for a common attitude.

It was this conception of the essential nature of religious activity that Madison had in mind when, in the opening item of his Memorial and Remonstrance Against Religious Assessments, he argued that the duty we owe to God “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” My colleague Michael McConnell, in his seminal article on “The Origins and Historical Understanding of Free Exercise of Religion,” gives this claim an expansive reading that I still find incredible I (103 Harvard Law Review at 1452-1455 [1990]). Issues of religiously-based exemptions from civil laws were not widely discussed in the founding era; the exemptions that mattered, the claims that make the free exercise of religion the most radically liberal right of all, were concerned with protecting the confessional authority of individuals and their freedom from any obligation to worship as someone else wanted them to or to pay for the support of churches.

So my historical position, then, is very close to that of Professor Muñoz. The one way in which I would extend his argument, in terms of its contemporary implications, relates to the problem of “third party” effects—that is, the way that claims for religious exemptions invoked under the Religious Freedom Restoration Act have significant consequences for the beneficiaries of employee-funded insurance plans. The principal realm of controversy involves benefits that can be described as supporting either contraception or abortion. Let us assume that moral and religious concerns of one kind or another enter into how a woman would think about either of these choices. Given the radical emphasis that eighteenth-century Americans placed on the individual right of conscience, how could they possibly alienate that right from the woman (the beneficiary) who has to exercise it to the party legally obliged to fund her insurance (the benefactor). Whatever religious scruples and qualms the benefactor may feel, how could he or she possibly exercise a moral choice than belongs to the beneficiary?

— Jack Rakove

Thomas: Religious Liberty and Jurisdictional Separation

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, George Thomas (Claremont McKenna) responds to Muñoz. For other posts in this series, please click here

Phillip Muñoz’s jurisdictional understanding of religious liberty is a powerful and persuasive challenge to the idea that religious liberty demands exemptions from otherwise valid laws. Yet I want to start with an area of agreement between Muñoz’s jurisdictional understanding and Michael McConnell’s exemptionist understanding. Both Muñoz and McConnell begin with religious liberty as a natural right that circumscribes state authority. This is altogether fitting. But it is only half the story. While civil power was a threat to religious liberty, religion itself was the source of civil disorder and religious oppression. Religious liberty was also then, particularly in the hands of James Madison, a way to limit theological authority and bring about civil peace by making religion a matter of individual choice.

Madison wrote to William Bradford, a friend from his days at Princeton, of the “diabolical, hell conceived principle of persecution” that drove those—including the clergy— who used government to enforce religious orthodoxy. Madison’s inalienable right to religious liberty, with its attendant separation of religion from civil government by way of the social compact, would keep the government out of theological disputes; yet it would just as surely prevent religious sects from using the government to enforce their beliefs. Muñoz is thus right to argue that a jurisdictional understanding of religious liberty is no small achievement. While he nods to the Middle East to make this point, he could just as easily turn to America’s history.

As America was debating the religion clauses of the Constitution, England was debating repeal of the Test Acts, which required those who held public office to take communion according to the rites of the Church of England. This was the very sort of religious test for public office that the American Constitution rejected in Article VI. The Test Acts stood alongside the Act of Toleration, so while religious dissenters were tolerated their religious liberty was conditional. They were not able to hold public office until the acts’ repeal in 1828 or to attend Oxford and Cambridge until the Universities Tests Act of 1871. Back when the free exercise clause was being framed, defenders of religious tests saw them as an essential part of having an established church (and included the likes of William Blackstone and Edmund Burke). Madison worried that such “zealous adherents” to religious hierarchy persisted in America. And they did.

A number of state constitutions required religious tests for office and otherwise favored established churches. Indeed, we might best understand the “peace and safety provisions” of state constitutions at issue between Muñoz and McConnell as remnants of Continue reading

Franck: Religious Liberty–Cores and Peripheries, Courts and Legislatures

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Matthew J. Franck (Witherspoon Institute) responds to Muñoz. For other posts in this series, please click here

In his most recent work, Vincent Phillip Muñoz continues to make his mark as one of our most thoughtful and searching students of the American founding, of the constitutional principle of religious liberty, and of the meandering course of the Supreme Court’s jurisprudence on the free exercise of religion. In his latest articles in the American Political Science Law Review and the Notre Dame Law Review, and in his briefer essay for the Law and Religion Forum to kick off this symposium, he writes with his characteristic verve and clarity, as well as his usual familiarity with a wealth of relevant sources in the founding era.

I propose in this response to discuss Muñoz’s most significant contributions to our understanding of the constitutional law of religious freedom, and then to enumerate some more problematic features of his argument, along the way posing some questions. In some cases these questions will be real questions—that is, the kind to which I do not claim to have the answer, but to which I think Muñoz has not supplied one either. Attentive readers should be able to tell which those are.

The Good Stuff

Muñoz is right to remind us that, in the thought of the founding generation, religious freedom is a natural right, not merely a species of toleration granted or withheld at the government’s discretion. From the founders’ perspective, religious liberty is pre-political, grounded in our duty to God as we understand it, and taking precedence over the competing claims of the state, or even of the civil society that exists prior to the state and is responsible for creating it.

For multiple purposes, not just for understanding religious freedom, we do well to understand, as Muñoz does, that the founders’ social compact theory entailed two crucial but distinct steps in the creation of political authority. First is the formation of civil society itself, by the mutual and unanimous compact of natural persons with one another. Second is the establishment of government, by the choice of a majority of those persons in that society. What those individuals surrender, and what they retain—including those things not even in their power to surrender—will determine the boundaries of power that constrain a limited government.

Among the things identified by many of the founders—and implied in many of their public documents declaring rights, and establishing and limiting governments—as never surrendered, nor subject to being surrendered, is what Muñoz calls the individual’s “natural right to religious liberty.” It Continue reading

Bradley: Religious Liberty vs. Moral Autonomy

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Gerard V. Bradley (Notre Dame) responds to Muñoz’s arguments. For other posts in the series, please click here

One need not be a hide-bound originalist to delight in Phillip Munoz’ attentiveness to the letter of the Constitution. He is quite right to say that the First Amendment enacts “an absolute ban” on something, that its character is “categorical”; after all, “Congress shall make no law.” Munoz is right again to count this character as probative evidence of the “jurisdictional” understanding of the Free Exercise Clause which he defends. He is right also to see that any such “categorical” liberty has to be limited to a set of specific acts, such as worship and confessions of faith, lest letting the spirit roam where it wills (recall: no law!) does not produce anarchy, even as it limits government in favor of each individual’s direction of his or her religious life.

Munoz is also right about the Smith case and thus the original understanding of the Free Exercise Clause. The Court in Smith spent most of its time arguing against the “exemptionist” (Munoz’ term) interpretation of Free Exercise, minted 27 years earlier in Sherbert v. Verner. But without quite identifying it as such, the Court hit upon the meaning of Free Exercise apprehended by the  ratifiers:

[A]ssembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation . . . [A] state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts . . . only when they are engaged in for religious reasons, or only because of the religious belief that they display.

The decisive feature of Free Exercise, then, is not exemptionism’s idealized “neutrality of effect,” but rather what might be called “neutrality of reasons.” John Locke provided a Continue reading

DeGirolami, “Religious Accommodation, Religious Tradition, and Political Polarization”

I have posted a new paper, Religious Accommodation, Religious Tradition, and Political Polarization (UPDATE: link fixed). Though my subject is not the same as Professor Muñoz’s, the two are related in several ways, and I’ll have a post or two about the connections soon. Here’s the abstract:

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on the burden question; and (2) courts have anti-establishment reasons for doing so. Courts, it is said, do not decide about the quality of religious burdens. Claimants do that. Courts defer so as to reduce the political polarization that might result if some should perceive that their religious beliefs and practices are comparatively powerless to obtain exemptions. Deference on the burden question preserves the religious neutrality of courts and mitigates the politically polarizing dangers of accommodation.

This essay contests that view. It argues that this approach to religious accommodation has generated considerable difficulties of its own that have aggravated the political polarization they were intended to reduce. Political polarization is now a pervasive feature of religious accommodation, but this essay focuses on only some explanations for this unfortunate state of affairs—those that relate to the antagonistic relationship between religious accommodation and established religious groups and traditions.

First, hyper-deference as to the burden on religion systematically undermines the view that religions are institutional phenomena with established, stable, and longstanding traditions. In doing so, it damages the argument that courts are institutionally incompetent to evaluate religious ideas. Claims about the institutional incompetence of the judiciary to inquire into religious burdens proceed on the assumption that there is something unique—and intelligibly unique—about religious beliefs and practices that make them different from, say, individual foibles, fraudulent schemes, flights of fancy, or private predilections. Arguments about the judiciary’s institutional incompetence as to religious questions contemplate the existence of other institutions that are competent as to those questions. Lacking such other institutions, the institutional competence of courts to evaluate religious claims is greatly strengthened. Courts are perfectly competent to evaluate fraud, idiosyncrasy, gibberish, and personal preference. Yet when courts are disabled from evaluating some varieties of idiosyncratic eccentricity (denominated “religious”) but not others (not so denominated), then “religion,” and therefore religious accommodation, is bound to be politically polarizing. The category of religion, having been stripped of its institutional character for legal purposes, designates nothing coherent at all. And people begin to suspect with some justice that decisions about accommodation are being made on the basis of other reasons altogether.

Second, the hyper-deferential approach to religious accommodation assumes and promotes a particular and decidedly non-neutral view of religion as irrational and utterly incomprehensible to anybody other than an individual believer. Accommodation is not for established religious groups or traditions—groups that are organized, enduring, and that might offer substantial resistance to prevailing political and cultural orthodoxies. Accommodation is for the exotic, the personal, the unthreatening, and the peculiar. That view is part of the heritage of the highly individualized, subjective approach to religion steadily constitutionalized by the Supreme Court since the mid-twentieth century, and that now seems to be the foundation of one powerful strain of the contemporary cultural understanding of religion in America. It is a view whose promotion in law has profoundly entangled the state with religion. The refusal of courts to make any serious inquiry into the nature of the asserted religious burden has encouraged increasingly aggressive, self-indulgent, and ephemeral assertions of religious freedom. It will—and indeed, it already has—promoted unserious religion. Small wonder that religion as a legal category is in such disreputable odor. Small wonder that religious accommodation is increasingly perceived in politically partisan terms.

Munoz: Justice Scalia was Right about Religious Free Exercise

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this leadoff post, Muñoz summarizes his argument. For other posts in the series, please click here

“[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact . . .”

– James Madison, “On Sovereignty,” (1835)

In the wake of Antonin Scalia’s untimely passing earlier this year, originalists and conservatives praised the Justice’s legacy with one notable exception—his majority opinion in the Free Exercise Clause case, Employment Division of Oregon v. Smith (1990). Stanford Law Professor Michael McConnell identified Smith as his least favorite Scalia opinion. Michael Stokes Paulsen went even further, writing an entire essay about Smith titled, “Justice Scalia’s Worst Opinion.” Calling it a “constitutional disaster,” Paulsen, who holds a Distinguished University Chair at the University of St. Thomas, claimed that Scalia overturned the only interpretation “that makes sense of the decision to have a free exercise clause in the first place” and overthrew the “understanding [that] accords with the founding generation’s understanding of religious freedom as a ‘natural right.’” Even for a “fainthearted” originalist, as Scalia once labeled himself, that is harsh criticism.

I certainly agree that Scalia’s Smith opinion has significant shortcomings (including everything about “hybrid rights”), but from an originalist perspective, its basic conclusion is correct. I’ll go even further: Justice Scalia’s non-exemptionist reading of the Free Exercise Clause is the only construction consistent with the American founders’ natural rights political philosophy and their attendant social compact constitutionalism. As much as I admire the scholarship of McConnell, Paulsen, and other originalist defenders of the Sherbert approach, they are simply wrong when they claim the founders’ natural rights constitutionalism supports a constitutional right to exemptions.

Let me start, however, with a point of agreement. I applaud Professors McConnell and Paulsen for emphasizing the founders’ understanding of religious liberty as a natural right. Recovering the idea of natural rights is essential to contest the idea that the state grants religious liberty and can limit it according to its own interests and preferences.

The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of Continue reading

The Atrophic Free Exercise Clause

The Supreme Court has had essentially nothing of substance to say about it over the last 23 years. The contraction of whatever rights are protected by it proceeds apace. In this article a couple of years ago, I noted that religious accommodation–

one of the most vital issues of religious free exercise that at one time implicated the Free Exercise Clause directly—has by now largely become entirely statutory. The Roberts Court has decided or issued substantive orders in 4 cases involving either RFRA or RLUIPA [excluding the nonprofit contraception mandate litigation]. In the same period it has decided only one case (perhaps) partially about the Free Exercise Clause, a case in any event that is arguably not about religious accommodation at all and that represents a carve-out from general free exercise principles. The single case that brought both statutory and free exercise claims was resolved solely on the basis of the statutory claim without any decision as to free exercise.

It is tempting to attribute the reason for this transition from the Free Exercise Clause to statute law entirely to the holding of Employment Division v. Smith, which ostensibly precluded judicial review as to laws that are neutral and of general application. To be sure, the rule announced in Smith has contracted the number of Free Exercise Clause challenges. And yet there are features of Smith—most notably the issue of the meaning of “general applicability” and the scope of what I have elsewhere described as the “individual-assessment exception” to Smith—that have suggested to several lower courts that accommodations are constitutionally required far more often than may appear under Smith. To date, however, the Supreme Court has declined to hear any cases raising a direct challenge to Smith.

The enfeeblement of the Free Exercise Clause continues. Last week, the Court denied cert. in Stormans v. Wiesman (with Justice Alito dissenting from the denial, in an opinion joined by the Chief Justice and Justice Thomas), a case about Washington State’s regulations requiring the stocking of drugs in pharmacies that provided exemptions for various secular reasons (business reasons, for example) but not for religious reasons. The case presented a golden opportunity for the Court to clarify what exactly “generally applicable” means under the test given to us a full generation ago by Employment Division v. Smith. Both Mark and I joined an excellent amicus brief urging the Court to do so.

No dice. Disappointing, but not surprising. Justice Kennedy, after all, was in the Smith majority, and while he authored the majority opinion in Lukumi-Babalu, his opinion offered a rather confused and confusing reading of general applicability (Justice Scalia’s concurrence was much better on this point). He joined four other Justices in denying cert.

But the larger point is that the Free Exercise Clause, at least as a possible source of accommodation, is increasingly a dead letter. Unless one has evidence of explicit discriminatory motivation in the making of exceptions (and it’s got to be really explicit), one should expect the Clause to offer nothing. The Court has little interest in saying anything else about the Free Exercise Clause, other than raising it as a kind of weak, pseudo-justification for carve-outs like the ministerial exception.

There are all sorts of political and cultural reasons for the atrophying of the Free Exercise Clause, of course. Some of those reasons are, I plan to argue in a new paper tentatively titled Religious Accommodation, Religious Tradition, and Political Polarization, pretty good reasons. But whatever the reasons–good or bad–they are not going away. In a generation or less, the Free Exercise Clause may well find itself in the company of the Privileges or Immunities Clause and the Third Amendment.

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