Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Tingley v. Ferguson, the Ninth Circuit denied an en banc rehearing for challenges of free speech, free exercise, and vagueness to Washington State’s ban on conversion therapy on minors. The case was originally heard by a 3-judge panel, which upheld the ban.
  • In Gardner-Alfred v. Federal Reserve Bank of New York, the Southern District of New York held that two former employees could bring suit against the Bank for violations of Title VII, RFRA, and the Free Exercise Clause. The basis of the claims come from the Bank’s denial of a religious exemption from the Bank’s COVID vaccine mandate.
  • In L.B. ex rel Booth v. Simpson Cty. Sch. Dist., filed in the Southern District of Mississippi, a school district abandoned a policy that prohibited students from wearing masks with political or religious messages. The parties settled, and the school district will now permit the student to wear a mask that reads “Jesus Loves Me.”
  • In Scardina v. Masterpiece Cakeshop, the Colorado Court of Appeals issued a ruling on January 26, 2023, stating that the Colorado Anti-Discrimination Act did not infringe on Jack Phillips’ free exercise of religion (Phillips was the claimant in the different Masterpiece Cakeshop case decided by the Supreme Court in 2018). This case arose out of Phillips’ refusal to create a cake that celebrated and symbolized a gender transition because it would contravene his religious beliefs.
  • Indiana Supreme Court heard oral arguments in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. on January 19, 2023. The oral arguments dealt with a challenge to the state’s pro-life law, which prohibits abortion except in cases of rape, incest, fatal fetal anomalies, or when the woman’s life is at risk. Liberty Counsel filed an amicus brief on behalf of the National Hispanic Christian Leadership Conference defending the law.
  • Alabama Governor Kay Ivey issued Executive Order No. 733 on January 20, 2023, which requires a state executive-branch agency to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable. For example, the order requires executive branch agencies to consider possible burdens on religious exercise when adopting administrative rules, and also to allow state employees to express their religious beliefs in the same manner as they would express non-religious views.  

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Fellowship of Christian Athletes v. San Jose Unified School District, the Ninth Circuit vacated its August 2022 decision which had found for the Fellowship of Christian Athletes and ordered that the case be reheard en banc. In this case, the school had revoked the status of a Christian student group because the school objected to a policy that allegedly discriminated against LGBTQ students.
  • In Firewalker-Fields v. Lee, the Fourth Circuit affirmed the dismissal of a Muslim inmate’s First Amendment Free Exercise claim. The court wrote that the jail’s policy of not allowing the plaintiff access to Friday Islamic prayers was reasonably related to security and resource allocation.
  • Thirteen Christian and Jewish leaders filed for a permanent injunction in the Missouri Circuit Court in Blackmon v. State of Missouri. The complaint seeks to bar the State of Missouri from enforcing its abortion ban, claiming that the ban violates the Missouri Constitution by failing to protect the free exercise of religion.
  • In Ference v Roman Catholic Diocese of Greensburg, a federal magistrate judge in the Western District of Pennsylvania recommended denying a motion to dismiss filed by the Catholic Diocese in response to a Title VII sex-discrimination lawsuit. The lawsuit was made by a Lutheran sixth-grade teacher in a Catholic school who was fired shortly after being hired when the school discovered that he was in a same-sex marriage.
  • A nurse practitioner filed suit in a Texas federal district court after being fired for refusing to prescribe contraceptives. The complaint in Strader v. CVS Health Corp alleges that CVS’s firing amounted to religious discrimination in violation of Title VII.
  • On January 11, 2023, the US House of Representatives passed the Born-Alive Abortion Survivors Protection Act. This bill states that any infant born alive after an attempted abortion is a “legal person for all purposes under the laws of the United States.” Doctors would be required to care for those infants as they would any other child who was born alive.
  • Dr. Erika Lopez Prater, an art professor at Hamline University, is suing the University for religious discrimination and defamation after she was fired for showing an image of Muhammad to her Islamic art class.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Groff v. DeJoy, the United States Supreme Court will review a Christian mail carrier’s lawsuit alleging the United States Postal Service did not accommodate his religious objection request to delivering packages on Sundays. The Third Circuit held in October 2022 that Groff’s accommodation would cause undue hardship to USPS. 
  • In Hunter v. U.S. Dept. of Education, an Oregon federal district court dismissed a class-action suit by more than forty students who claimed that the Department of Education failed to protect LGBTQ+ students from discrimination at religious schools. The court wrote that exempting religious schools from Title IX to avoid interfering with their convictions is “substantially related to the government’s objective of accommodating religious exercise.”
  • In Hammons v. University of Maryland Medical System Corp., a Maryland federal district held that a hospital’s refusal to perform a procedure to treat the plaintiff’s gender dysphoria was sex discrimination in violation of the Affordable Care Act’s discrimination ban. The University of Maryland-owned hospital was originally a Catholic hospital, and its purchase required the University to abide by the Ethical and Religious Directives for Catholic Health Services promulgated by the United States Conference of Catholic Bishops.
  • In Planned Parenthood South Atlantic v. State of South Carolina, the South Carolina Supreme Court held that the state’s Fetal Heartbeat and Protection from Abortion Act violates a woman’s right to privacy protected by the South Carolina Constitution. The opinion stated that “[the] Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman’s right to privacy and is therefore unconstitutional.”
  • The Hamtramck, Michigan City Council amended the city’s Animal Ordinance to permit animal sacrifices on residential property subject to certain permits and guidelines. Hamtramck has a large Muslim population, and animal sacrifice is a traditional component of Eid al-Adha.
  • Per a French court order, the town of La Flotte, France, must remove a statue of the Virgin Mary that stands at a crossroads in the small municipality. Citing a 1905 French law that forbids all religious monuments in public spaces, the court noted that, while town officials had not intended any expression of religious support, “the Virgin Mary is an important figure in Christian religion,” which gives the statue “an inherently religious character.”

Rinella on Sharia in the State System

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.

This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.

Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.

My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.

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Martinez-Torron on Religious Exemptions

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Javier Martínez-Torrón (Complutense) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

The following ideas are not an attempt to cover the entirety and complexity of the issues raised by the claims for the so-called religious exemptions. They just try to emphasize some aspects that are often, in my opinion, not sufficiently considered in legal debates.

1. Taking the right approach

The very title of this session—Religious Exemptions—may be misleading. It obviously refers to situations where there is a conflict between conscience and law, that is, between moral obligations (not necessarily rooted in a religious conscience) and legal obligations. For the purpose of these brief reflections, I will refer to exemptions on moral grounds rather than to religious exemptions, considering that objections on religious and objections on other ethical grounds must be treated equally. In Europe, this type of conflict is often addressed under the term “conscientious objections.”

From my perspective, it is a mistake to analyze these conflicts from the perspective of legal exemptions, emphasizing that some people seek to be exempted from complying with the law on moral grounds (often deriving from religious beliefs). The term “exemption” suggests the existence of a privilege or an anomaly. And I profoundly disagree with the view that conscientious objectors are a “human anomaly” or seek privileged treatment. Such conflicts usually involve people with moral positions different from the majority. To consider that people in a religious/ethical minority are “anomalous” implies a prejudice incompatible with the contemporary notion of fundamental rights. And, certainly, we would not depart from that premise if we were dealing with other characteristics that define people’s identity and way of living, such as sexual orientation, ethnic origin, or physical deficiencies. Just the opposite, we assume that it is important to organize society, and the legal system, in a way that takes such characteristics into account so that those persons are not excluded or treated as second-class—“anomalous”—citizens.

In this regard, it is important to bear in mind two things. First, freedom of religion or belief is part of the applicable law in most countries. It is recognized and protected by international instruments as well as by most national constitutions, with one or other terminology. Such freedom entails not only the right to choose one’s beliefs but also the right to behave in accordance with them; that is, freedom of conscience, the right to act following the supreme rules dictated by one’s moral conscience.

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Cavana on Religious Exemptions as a Problem for Liberalism

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short discussion papers. Professor Paolo Cavana (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

[1] Liberalism, both as a political doctrine and in its historical manifestation, has known several variants. This notwithstanding, there are certainly some common principles underpinning liberalism. Among these, we must include the primacy of the individual and the protection of his freedom against all forms of political oppression. It is no coincidence that liberalism was born and grew, in Europe and in Great Britain, starting from the Protestant Reformation. It represented a reaction to absolute Monarchies and to the concentration of powers they entailed. The different historical events of the United Kingdom and of continental Europe later marked a furrow in the development of liberalism doctrine and in its historical achievements, which also had effects in giving life to the peculiar American constitutional experience.

Among the main factors that marked the development of liberalism and its historical achievements, there is certainly religion, which has always played a fundamental role. Suffice it to say that the two English revolutions of the seventeenth century, which laid the foundations of liberal constitutionalism, were fought by Parliament in the name of religious freedom against the monarchy and its claim to impose a state religion on its subjects. On the contrary, the French Revolution, and the European liberalism that prepared it and followed it, taking into account the tragedy of religious wars, considered the Church and religion as an obstacle to civil and political progress. As such, both would eventually have to be overcome, or at least they were to be kept closed within the private sphere of individual conscience. This gave European liberalism the anti-religious character that has always differentiated it from the Anglo-Saxon one.

More generally, it can be said that European liberalism, which rests its foundations on the absolutist legacy of monarchies and on the theories of Montesquieu and J.J. Rousseau, since its inception, has always fought against social formations (Le Chapelier Act), considered to be a potential diaphragm between the individual and the State and a source of inequality between citizens. On the contrary, English and American liberalism has always viewed social formations – local communities, religious groups, and free associations – as an essential counterweight to the authority of the central State and hence a guarantee for citizens’ freedom.

It should also be noted that it was not religion in the abstract but in the concrete, that is, Christianity, which laid the groundwork for the birth of the liberal doctrine (B. Croce). In fact, neither the ancient world nor other religions or civilizations recognize – like Christianity, which germinated from Judaism, does – the role of human freedom even in the face of God. As a result, the act of faith can only be the fruit of human free choice, which is the very foundation of man’s dignity: “you have made him little less than a god, with glory and honour you crowned him,” says the psalmist (Psalm 8).

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Barclay on Religious Exemptions and Hate Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Stephanie Barclay (Notre Dame) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

One enduring question of liberal democracies is how to reconcile the tension between claims to authority by the rulers and claims to liberty by the governed. [1] Debates about the validity of religious exemptions often play out as a microcosm of this larger discussion. Some, such as the late Justice Antonin Scalia, have argued that a country would be “courting anarchy” if it too generously provided exemptions to legal rules based on religious objections.[2] At the other end of the spectrum, the United States Supreme Court has also recognized that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”[3] I have argued elsewhere that a legal regime which never provides religious exemptions is primed to increase human suffering and decrease human dignity by penalizing (or making impossible) actions individuals feel they must (or must not) take to comply with higher divine mandates.[4]

One standard answer to the broader dilemma of reconciling authority and liberty is what some scholars term the consent proposition,[5] also reflected in social contract theory that pervades thinking by luminaries such as Locke, Hobbes, Rousseau, and Rawls. This proposition is embodied in the American Declaration of Independence as a “self-evident truth”—that “Governments . . . deriv[e] their just powers from the consent of the governed.” On this account, consent is often emphasized as the sole source of political legitimacy of a legal regime.  Steven Smith has surveyed problems with the consent proposition as an unpersuasive fiction if we are looking for consent on the level of an autonomous individual born into a legal community.[6] But that might be looking to the wrong unit of the populace (just one lone individual) to give consent. As Richard Ekins has explained in his work on joint action theory, groups can act in purposeful ways where a body like “the people” can consent to certain frameworks—like a constitution—for self-governance. To be a free people, the people in the singular is the ruler and agent, and the people in the plural are the ruled and the principals.[7] And for the consent of the group action to be legitimate, the people must have meaningful opportunities to change the legal rules they’ve put in place in the future.

Assuming consent by the people can resolve the tension between authority and liberty generally, how can religious exemptions be provided in a way that is consistent with this type of self-governance? One obvious answer is the use of legislative religious exemptions. Through this method, the people can act jointly in a deliberative manner to protect space for religious exercise where frequent conflicts (and often high-stakes conflicts) can arise between authority and the liberty of a religious objector. In Early American history, the United States offered exemptions from the draft to Quakers who objected on religious grounds to military service.[8] Religious exemptions can be offered in more mundane contexts, like tax exemptions for churches, when the people may judge that excluding some religious institutions from some obligations provides relevant goods to society in other important ways.

While critically important, legislative religious exemptions present some shortcomings. One is that they are usually more attuned to the needs of majoritarian religious groups (or at least large and well-known religious groups) than minority religious groups. For the conflict between authority and religious liberty to have been significant enough to have garnered legislative attention, it’s reasonable to assume that those sorts of conflicts are most obvious when a significant portion of the population shares the belief that gave rise to that conflict. For example, many prisons recognize religious exemptions for kosher dietary requirements. But few recognize exemptions for a Kemetic diet required by adherents of Shetaut Neter.[9] A second limitation is that some types of religious objections result from unexpected applications of a law. These conflicts are thus unlikely to involve a legislative compromise in advance that includes a religious exemption. Third, many government policies are promulgated by agencies, rather than legislatures. Scholars like Philip Hamburger have noted that these less politically accountable institutions are often less sympathetic to the need to craft religious exemptions that would apply to new policies.[10]

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Legal Spirits Episode 043: The New Thoreaus

In this episode, Marc interviews Mark about his new article, “The New Thoreaus,” on the rise of the Nones and its impact on free-exercise law. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!

Delsol, “The Insurrection of Particularities, Or, How the Universal Comes Undone”

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” with our longtime partner, Università di Roma LUMSA. The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers.

The distinguished political historian and philosopher, Chantal Delsol, gave a keynote address for the conference. We are delighted to publish her talk here. The address is in French, and I link to the original below. With Professor Delsol’s permission, I have translated it for our English speaking readers (the footnotes remain in the original).

The Insurrection of Particularities, Or, How the Universal Comes Undone

Rome, July 8, 2022

Chantal Delsol

1.

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

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A Writeup on This Month’s Conference in Rome

Here’s a writeup (with photos!) on our conference this month in Rome, co-hosted with LUMSA University, on liberalism, religious exemptions, and hate speech regulations. We’ll post papers from the conference in due course. Meanwhile, thanks to the participants: keynoters Cesare Mirabile and Chantal Delsol, and Professors Stephanie Barclay (Notre Dame); Paolo Cavana (LUMSA); Gayane Davidyan (Lomonosov); Richard Ekins (Oxford); Monica Lugato (LUMSA); Adelaide Madera (Messina); Javier Martínez-Torrón (Complutense); Marco Olivetti (LUMSA); Andrea Pin (Padua); Jeffrey Pojanowski (Notre Dame); Angelo Rinella (LUMSA); Steven Smith (San Diego); and Kevin Walsh (Catholic University of America).