For those who are interested, the Harvard Journal of Law and Public Policy has published my article, Masterpiece Cakeshop and the Future of Religious Freedom, in the most recent issue. Here’s the abstract:
Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.
Readers can also download the article from the SSRN website, here.
Here are some important law-and-religion news stories from around the web:
- The nineteen-year-old man accused of killing one worshipper and wounding three others in a shooting at a Chabad synagogue near San Diego (CA) this past weekend pleaded not guilty to murder and attempted-murder charges.
- Sri Lanka has issued a ban on all face coverings, including burqas and niqabs, following the Easter Sunday bombings that killed more than 250 people and wounded at least 500 others.
- A Muslim U.S. Army veteran was arrested for planning to plant a bomb at a Nazi rally in Long Beach (CA)—an act of revenge for attacks on mosques in New Zealand that killed fifty people last month.
- Texas’s Senate passed a bill that would codify an opinion issued by state Attorney General Ken Paxton that licensed handgun holders can carry weapons in churches, synagogues, and other houses of worship.
- The U.S. Supreme Court denied a petition for certiorari filed by the Universal Church, Inc., a group that was refused trademark protection on its name after a lower court ruled that it was merely a generic term.
- New Zealand’s major media organizations pledged not to promote white supremacist ideology when covering the trial of the man charged with killing fifty people at two mosques in Christchurch.
- Washington Gov. Jay Inslee signed into law a bill that requires institutions of higher education to provide academic accommodations to students who need extra time for religious observances.
- Rockland County Executive Ed Day and Commissioner of Health Patricia Ruppert are pushing for New York state lawmakers to pass legislation repealing religious and other exemptions from vaccination requirements for children.
- The U.S. Commission on International Religious Freedom issued a report documenting dozens of countries with significant religious freedom violations.
- Pastors of various Pentecostal churches in Uganda have vowed to challenge a proposed government policy that would require all ministers to obtain formal theological training from a recognized institution.
- Tennessee lawmakers delayed a proposed bill that would have allowed faith-based adoption agencies to refuse to place children with LBGT parents and other families because of their religious beliefs.
- Georgia’s Attorney General has launched an investigation to uncover allegations of child sex abuse by priests and other leaders in the Catholic Church.
- The Catholic Diocese of Sacramento released a list of more than forty priests credibly accused of sexually abusing roughly 130 victims over the past seventy years.
- A Milwaukee-area Sikh temple where a white supremacist fatally shot six parishioners in 2012 hosted Wisconsin Gov. Tony Evers Tuesday to speak about his proclamation marking April as Sikh Awareness and Appreciation month in the state.
- Police in Glasglow, Scotland, are investigating vandalism committed Monday at St. Simon’s parish, an attack the archdiocese described as “shameful.”
- Arson investigators were called to look into a fire that destroyed St. Joseph Catholic Church in northeast Phoenix (AZ).
- The Florida Senate unanimously passed a bill to address anti-Semitism in the state.
- The St. Ambrose Catholic Church in Brunswick (OH) was swindled out of $1.75 million after its email system was hacked and payments intended for a construction company were rerouted to a fraudulent bank account.
- Alabama’s House of Representatives approved a bill that if passed would criminalize abortion and classify it as a Class A felony, subjecting any doctor who performs an abortion to a possible ninety-nine-year prison sentence.
- North Carolina’s Senate voted to override Gov. Roy Cooper’s veto of a bill that would make it a felony for doctors to fail to perform life-saving measures on a baby born alive after a botched abortion.
- The Kansas legislature fell short in its attempt to override Gov. Laura Kelly’s veto of an abortion bill that would have required abortion providers to tell patients about a treatment to stop a medication abortion after it has been started.
- The Greene County Sheriff’s Department (MO) is facing criticism for an Easter Facebook post featuring a cross, which some say potentially violates the First Amendment.
- A pastor and five churchgoers were murdered by gunmen leaving their church in the West African nation of Burkina Faso on Sunday.
Here are some important law-and-religion news stories from around the web:
- The families challenging the San Diego Unified School District’s “Anti-Islamophobia Initiative” finalized a settlement agreement with the district.
- A group of Newton, Massachusetts taxpayers filed suit against the Newton School Committee for purportedly indoctrinating students with anti-Semitism, bigotry against Israel, and Islamist religious dogma in violation of the Equal Rights Amendment of the Massachusetts Constitution and the Massachusetts Student Anti-Discrimination Act.
- West Virginia’s attorney general announced that the state filed suit against a Catholic diocese, alleging it knowingly employed pedophiles.
- Bavaria’s constitutional court upheld the southern German state’s ban on judges and prosecutors wearing headscarves.
- The U.S. Supreme Court asked the Solicitor General to file a brief in Patterson v. Walgreen Co., a Title VII religious accommodation case relating to a Seventh Day Adventist employee.
- The South African North Gauteng High Court set aside the Dutch Reformed Church’s decision not to recognize same-sex marriages, as same-sex marriage has been legal in South Africa since the Civil Union Act of 2006.
- A federal judge has found that a jury will decide whether a Georgia school system’s decision to halt a yoga program was done to promote Christianity.
- Quebec will exempt certain civil servants from its religious symbols ban by including a grandfather clause.
- A church in Washington has filed suit to challenge a law requiring insurance plans that cover maternity care to “also provide a covered person with substantially equivalent coverage to permit the abortion of a pregnancy” as violating its free exercise rights.
- Attorneys for clergy sex abuse victims released a new 180-page report Wednesday detailing the 395 Illinois priests publicly accused of sexual abuse.
- Russia deported two U.S. Mormon Church volunteers after they spent almost three weeks in jail.
- The U.S. Supreme Court declined to hear an appeal by a Catholic Hawaiian bed and breakfast owner who violated Hawaii’s public accommodation law by refusing to rent a room to a lesbian couple.
- Over 100 religious clergy members from across Tennessee signed a statement opposing six state legislative bills that “strike at the dignity of LGBT people.”
- Israel’s Supreme Court disqualified Michael Ben Ari, the leader of a Jewish ultranationalist party, from running in the country’s elections because of his anti-Arab ideology and incitement.
At the Liberty Law site today, I have a post discussing the UK Supreme Court’s ruling this month in Lee v. Ashers Bakery, a wedding-vendor case from Belfast. The British case deals with several substantive issues that our own Supreme Court dodged earlier this year in Masterpiece Cakeshop. The British court’s president, Barbara Hale (left), wrote for a unanimous court:
Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.
Readers can find my post here.
As Marc wrote last week, religious accommodations are the focal point of most of our law-and-religious controversies nowadays. When it comes to taxes, of course, the government accommodates religious organizations by exempting them (it does this for other charitable organizations as well). No doubt these exemptions, so much a part of American tradition, will come under increasing scrutiny in the years ahead.
A forthcoming book from Cambridge University Press, God and the IRS: Accommodating Religious Practice in United States Tax Law, addresses the topic. The author is Loyola University Chicago Law Professor Samuel D. Brunson. Here’s the description from the publisher’s website:
Seventy-five percent of Americans claim religious affiliation, which can impact their taxpaying responsibilities. In this illuminating book, Samuel D. Brunson describes the many problems and breakdowns that can occur when tax meets religion in the United States, and shows how the US government has too often responded to these issues in an unprincipled, ad hoc manner. God and the IRS offers a better framework to understand tax and religion. It should be read by scholars of religion and the law, policymakers, and individuals interested in understanding the implications of taxation on their religious practices.
Allow people to pose religious objections to generally-applicable laws, the argument goes, and you will end up with chaos, a world in which every person is a law unto himself. That argument carried the day twenty-seven years ago in Employment Division v. Smith, and resurfaced as recently as last week, during oral argument in Masterpiece Cakeshop. A new article by Stephanie Barclay (Becket) and Mark Rienzi (Catholic University-Columbus School of Law), “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Objections,” maintains that the argument is overstated. The authors argue that religious accommodations are analogous to customary “as-applied” challenges in constitutional law, which have not destroyed the rule of law. Here’s the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:
Here is an interesting-looking article by Luke Goodrich and Rachel Busick, both of the Becket Fund, on religious freedom cases since the Hobby Lobby case, Sex, Drugs, and Eagle Feathers: An Empirical Study of Religious Freedom Cases, forthcoming in the Seton Hall Law Review. Goodrich and Busick argue that, notwithstanding predictions that the Hobby Lobby case would open the proverbial floodgates, religious liberty cases actually remain rare. Here’s the abstract:
This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.
Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. And while there was an uptick of litigation over the Affordable Care Act’s contraception mandate — culminating in Hobby Lobby and Little Sisters of the Poor — those cases have subsided, and no similar cases have materialized. Courts continue to weed out weak or insincere religious freedom claims; if anything, religious freedom protections are underenforced.
Our study also highlights three important doctrinal developments in religious freedom jurisprudence. The first is a new circuit split over the Religious Freedom Restoration Act. The second is confusion over the relationship between the Free Exercise and Establishment Clauses that is currently plaguing litigation over President Trump’s travel ban. The third is a new path forward for the Supreme Court’s muddled Establishment Clause jurisprudence.
Here are some important law-and-religion news stories from around the web:
- Roy Moore, a former Alabama Supreme Court justice who was removed from the bench for refusing to remove a Ten Commandments monument he had had installed in front of the courthouse, has won the Republican primary for Attorney General Jeff Session’s former Senate seat.
- A woman in Colorado has sued her former high school alleging that teachers and administers conspired to lower her grades and damage her chances for college admission as a result of her atheistic views and advocacy.
- The EEOC has filed a lawsuit on behalf of a Christian woman who claims she was fired from her job at a Mississippi restaurant chain after the chain declined to provide her a religious accommodation to the restaurant’s uniform.
- The Supreme Court has cancelled oral argument on the travel ban case and requested briefing on the issue of mootness after the Trump Administration enacted a revised ban that includes non-Muslim majority countries.
- The motive of a man who shot eight people, killing one, at a church in Tennessee is still unclear days after the attack.
- A Pew Research poll has revealed wide differences of opinion between U.S.-born Muslims and Muslim immigrants on the level of hostility Muslims face in U.S. society.