Reuters reports that Canada’s immigration ministry has decided to forbid women at naturalization ceremonies from wearing veils that cover their faces, even for religious reasons. The ban will affect Islamic veils like the niqab, which covers the face but has an opening to allow vision, and burqa, which has a mesh. The ministry argues that its decision will ensure that people who “join the Canadian family” do so “freely and openly,” but Reuters talks about a possible lawsuit by Canadians who believe the ban violates Muslims’s religious freedom. If such a case materializes, the governing precedent would likely be the Canadian Supreme Court’s 2006 Multani decision, the Sikh kirpan case, in which the court held that, under Canada’s Charter of Rights and Freedoms, any restriction on religious freedom must serve an important government objective and be proportional to that objective — a test that resembles the pre-Smith Sherbert doctrine in American law.
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.
Conscience v. Conscience?
Here is a view in the Guardian that is representative of a growing swell of opinion against the policy wisdom of granting exemptions for conscience reasons to religious institutions. I want to ask a question about one feature of the argument which one frequently hears in these discussions:
“Why should the conscience of an employer trump a woman’s conscience?” Illinois Democratic Representative Jan Schakowsky asked in a statement. “Why should an employer decide for a woman whether she can access healthcare services that she and her doctor decide are necessary? Why are we talking about allowing some employers to put up a barrier to access at a time when women are struggling afford and access healthcare?”
Indeed, what Rep Schakowsky asks is of vital importance. This isn’t just an issue of separating church and state, or of being forced to define what constitutes religious affiliation, doctor-patient privacy or a public health matter. If President Obama sides with the Catholic leaders demanding the exemption, his decision would directly impact the lives of millions of poor Americans already struggling in the recession.
It seems to me that this argument is confused, even if extremely popular and demagogically effective. The right question is not whether the religious institution’s conscience should “trump” the individual’s conscience. If the health care law contains an exemption for religious employers, the individual woman is not being prevented from obtaining contraceptive services. She is only losing the power to compel her religious employer (for whom, one should expect, she agreed to work voluntarily) to pay for her contraceptive services. On the other hand, if there is no exemption, the religious employer is being compelled to provide contraceptive services, in direct violation of its beliefs. What is of “vital importance” is the failure of so many people to recognize this distinction.
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.
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.
Bartrum on the Ministerial Exception
Ian Batrum has posted Religion and Race: The Ministerial Exception Reexamined. The abstract follows. — MLM
This essay is a contribution to the Northwestern University Law Review’s colloquy on the ministerial exception, convened following the Supreme Court’s decision to hear arguments in Hosanna-Tabor v. EEOC. I take the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. I offer historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, I suggest that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.
Liveblogging Forum 2000: Religious and Secular Law
(UPDATE: A video of the panel discussion, “Religious and Secular Law,” can be viewed in the player below. This post was originally posted on October 11, 2011 – ARH)
I just participated in Forum 2000’s final law-and-religion panel, “Religious and Secular Law.” The panel was chaired by Anna Teresa Arco, the Chief Feature Writer for the Catholic Herald, who opened the panel with an erudite introduction to the topic. In my remarks, I argued that the relationship between secular and religious law will be a crucial issue in the years ahead. Religion is resurging around the world, and there will likely be many occasions of conflict between secular and religious law. I discussed two doctrinal examples from the United States: the ministerial exception, currently before the Court in Hosanna-Tabor, and restrictions on religious practice under Employment Division v. Smith. Czech Judge Ivana Hrdličková followed with a discussion of the interaction between Islamic and secular law in Europe, especially with regard to family law. Professor Luboš Krobáček, a scholar of Islamic civilization at Charles University in Prague, closed the panel with an overview of the different schools of Islamic law. – MLM
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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
Double Daring the IRS
Tomorrow is Pulpit Freedom Sunday, an annual event, sponsored by the Alliance Defense Fund, that encourages pastors to give political sermons from their pulpits. The event is basically an attempt to goad the IRS into prosecuting someone under the 1954 law that prohibits churches and other charities from engaging in electoral campaigns. The ADF argues that the law violates the First Amendment and would like a test case. The problem, according to the New York Times, is that the IRS apparently has little interest in prosecuting anyone under the 1954 law, a fact that frustrates the law’s opponents and supporters alike. Where’s Inspector Javert when you need him? — MLM
Brandes on Education in Religious Communities
Tamar Hostovsky Brandes (Ono Academic College) has posted Between Vowels and Values: Education in Religious Communities. The abstract follows. –YAH
This paper examines the extent of autonomy religious minorities should enjoy in the area of education, specifically in determining the curriculum children belonging to religious minorities are required to study. While there is an abundance of scholarship on the topics of exemptions from educational requirements, this paper focuses on two issues that are relatively neglected. The first regards the different types of rights on the basis of which requests for exemptions are being made. This paper examines whether requests exemptions that are based on religious liberty are different than requests for exemptions based on culture, and argues that requests based on religious obligations are often more absolute that claims based on culture. As a result, mitigating measures short of exemptions, which may be able to resolve the issues that stand at the basis of the latter, do not resolve claims based on religious obligations.
The second issue this paper addresses is whether the state’s interest in promoting social solidarity justifies, at least in some circumstances, rejecting claims for such exemptions. In examining claims for exemptions in the field of education, liberal scholars usually concentrate on the interests the state has in ensuring that its citizens are self-sufficient and in instilling in them democratic values. The state’s interest in maintaining social solidarity is often overlooked. This paper argues that the state’s interest in maintaining social solidarity must be weighed separately from the state’s interests in self-sufficiency and democracy. It then suggests guidelines for assessing the effect a granting or rejecting a request for exemption may have on social solidarity. These guidelines include examining whether the exemption is requested by an individual or by a group, the scope of the exemption requested and the nature of educational material which the exemption covers.