Around the Web

Around the Web

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

At SCOTUS, a Compromise on Religious Liberty

At the First Things site this week, I have an essay on last term’s Religion Clause cases at the Supreme Court. I argue that the cases reflect the Court’s attempt to reach a modus vivendi in the culture wars between progressives and the traditionally religious on issues of sexuality, gender, and equality. Taken together, the cases suggest the Court is prepared to acquiesce to the dominant progressive consensus while allowing religious institutions some space to dissent. 

Here’s an excerpt:

Bostock suggests the Justices, including conservatives like Gorsuch and Roberts, are prepared to accede to the progressive view of sexuality and gender. But the Court’s hints about lingering free exercise issues imply it will afford religious institutions space to dissent. Other decisions from last Term confirm this reading. Take Espinoza v. Montana Department of Revenue, the Blaine Amendment case. The Court held, 5-4, that the Montana Constitution’s Blaine Amendment, which prohibits state funding for private religious schools, violated the First Amendment’s Free Exercise Clause. A state may not exclude schools from a funding program simply because of the schools’ religious “status” or “character,” Chief Justice Roberts wrote. “A State need not subsidize private education,” he explained. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Espinoza is a case about equality, but also has implications for debates surrounding sexuality and gender. It’s no secret that many, if not most, private religious schools hold to traditional understandings of sexuality and gender. In fact, parents often choose to send their children to religious schools precisely to avoid the progressivism that pervades public education. Allowing religious schools to receive public assistance on an equal basis with secular schools could make it easier for the traditionally religious to pass on their values to the next generation. 

The Court’s holding that in principle the state must afford benefits to private religious schools on an equal basis with private secular schools is thus important for the traditionally religious. Still, the Court’s focus on a school’s religious “status” raises some questions. Even if discrimination on the basis of a school’s religious affiliation is illegal, it remains unclear, under the Court’s decision, whether a state may restrict funding because the school’s program is at odds with progressive understandings of equality. The Espinoza Court left that question open, though it hinted that discrimination based on a school’s religious “use” of state funds also could be constitutionally problematic.  

You can read the full essay here.

Church Closings during COVID: The State of Play

At the Law and Liberty site this morning, I have an essay on current litigation regarding church closings during the coronavirus epidemic. I explain why courts have reached different results, and ask why some churches, rather than others, are bringing the lawsuits. Here’s an excerpt:

So far, the lawsuits have achieved mixed results. Federal district courts in California and New Mexico, for example, have rejected challenges and ruled that the bans in those states are constitutional. Federal district courts in Kansas and Kentucky, by contrast, have ruled that the bans in those states do violate the First Amendment. This past weekend, the Sixth Circuit agreed, holding that Kentucky’s ban on church services violates the Free Exercise Clause.

These cases are very fact-specific and turn on the specific language of the bans in question. But there is another, more important reason for the courts’ division. The law with respect to religious exemptions is quite indeterminate. Under the Supreme Court’s landmark ruling in Employment Division v. Smith (1990), no right to an exemption exists where a law is neutral and generally applicable, that is, where the law does not target religion for disfavored treatment. If a ban on public gatherings qualifies as a neutral and generally applicable law, a church cannot prevail.

If a law targets religion for disfavored treatment, by contrast, a church may have a right to a religious exemption—but not where the state can show that it has a compelling reason for enforcing the law against the church and has chosen the least restrictive means of doing so. As many have noted, this form of “strict scrutiny” essentially operates as a balancing test that requires judges to weigh the seriousness of the burden on religious exercise against the significance of the goal the state is trying to reach. If the goal is sufficiently important, the law will stand, regardless of the burden on religious exercise.

Both these questions—whether a law is generally applicable and whether the burdens of a ban outweigh its benefits—leave much to the discretion of individual judges….

You can read the whole essay here.

Call for Papers: Student Writing Competition on Religious Liberty

For law students finishing up notes and term papers on religious liberty, here is a great way to publicize your work and win a prize to boot. The International Center for Law and Religion Studies at BYU is running the eighth annual Religious Liberty Student Writing Competition. The top prize is a $4000 cash award. Here are the details:

Purpose: To promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies. Students who have graduated from law school but who are not yet practicing law due to clerkships or other similar pursuits are also invited to submit papers.

Form: Scholarly paper relating to the topic of domestic or international religious liberty, broadly or narrowly construed, consisting of 9,000-13,000 words, including footnotes. Eligible papers must be typed, thoroughly cited and presented in a format suitable for publication, with no additional editing required. Papers must conform to Bluebook requirements and may include footnotes. Papers prepared for academic coursework are permitted.

Submission: All papers must be submitted on or before July 1, 2017. Papers should be submitted by e-mail to papers@ jrclsdc.org in pdf and/or docx formats. The cover email should note the word count of the paper being submitted. A current resume should also be included. You will receive e-mail confirmation of your submission. Questions regarding submission may be directed to papers@jrclsdc.org.

The deadline is July 1. Further information may be found here.

On the Religious Liberty Order

At the First Things site, I have a post on last week’s executive order on religious liberty. I argue that the order doesn’t do very much about religious accommodation, but that doing little may be a strategic choice by the Trump administration. I also argue that weakening the Johnson Amendment, which prohibits tax exempt religious organizations from electioneering, would be a bad thing, and inconsistent with American tradition.

Here’s a sample:

[A]voiding partisan political contests is a longstanding tradition for American churches, and a very beneficial one. In the nineteenth century, Tocqueville observed that Christianity had a powerful influence in American politics; religion was, he famously said, “the first” of our “political institutions.” But Christianity’s influence on politics was an indirect one, and powerful precisely because it was indirect. Churches shaped Americans’ attitudes and morals, and Americans’ attitudes and morals shaped our politics. But churches studiously avoided party contests as such, and clergy “maintained a sort of professional pride in remaining outside of” them. As a result, Tocqueville observed, churches were never mixed up in the public mind with the vicissitudes of electoral campaigns, and maintained people’s confidence and respect.

This practice has served us very well. This is not to say that churches should avoid commenting on public questions, only that churches should refrain from endorsing or opposing particular candidates and parties, and avoid electioneering as such. In fact, I’ve never known a member of the clergy, liberal or conservative, who said he wanted to endorse or oppose a particular candidate from the pulpit. I suspect that, deep down, they all understood that mixing to that extent in partisan contests would interfere with their mission of preaching the Gospel and administering the sacraments. If last week’s order signals a change in our longstanding American tradition, it’s not a change conservatives should celebrate.

You can read the post here.

Panel: “And Justice for All?” (New York, May 16)

On May 16 in New York, the Fordham Center on Religion and Culture will host a panel, “And Justice for All? The Promise of Religious Liberty in a Pluralistic World.” Here are the details from the Fordham events page:

At a time when human rights and human lives are at risk in America and abroad, how can we reconcile conflicting views of how religious beliefs relate to public policy? Is religious freedom a veil for bigotry or an essential protection against sectarian persecution?

Join us as we explore the contentious issue of religious liberty and its intersection with immigration, health care, same-sex marriage, and other issues.

Panelists
Vincent D. Rougeau
Dean, Boston College Law School

Thomas Berg
Professor of Law, St. Thomas University

Carol Keehan
CEO, Catholic Health Association

Asma Uddin
Director of Strategy, Center for Islam and Religious Freedom

Ani Sarkissian
Political Scientist; Author of The Varieties of Religious Repression: Why Governments Restrict Religion

This event is free and open to the public. For further details, click here.

Around the Web

Here are some interesting news stories involving law and religion from the past week:

Lecture: “An (Un)Orthodox View: Religions and Politics in Russia Today” (Apr. 19)

On April 19, the King’s College McGowan Center for Ethics and Social Responsibility, the King’s Public Policy and Research Institute, and the Wyoming Valley Interfaith Council are co-sponsoring a lecture titled “An (Un)Orthodox View: Religions and Politics in Russia Today” given by Catherine Cosman (retired senior policy analyst for the United States Commission on International Religious Freedom) at the William G. McGowan School of Business. A brief description of the event follows:

King's CollegeCatherine Cosman, recently retired senior policy analyst for the United States Commission on International Religious Freedom, will discuss religious liberty in Russian and its impact on foreign policy at 7 p.m. Wednesday, April 19, in the Burke Auditorium at King’s College.

The free public lecture, titled “An (Un)Orthodox View: Religions and Politics in Russia Today,” is co-sponsored by the KING’S McGowan Center for Ethics and Social Responsibility, the King’s Public Policy and Research Institute, and the Wyoming Valley Interfaith Council.

After 70 years of official Soviet atheism, Russia is now home to a great variety of religions. While the Russian Constitution says that the country is a secular state, the religion law preface claims four religions as “traditional”: Orthodox Christianity, Islam, Buddhism, and Judaism. The Russian government, particularly the Kremlin, relies almost solely on the Moscow Patriarchate of the Russian Orthodox Church (MPROC) as its official religious bulwark. Cosman’s talk will examine some of the reasons for the Kremlin’s focus on the Moscow Patriarchate and how this focus both affects other religious communities and plays out in Russian international politics.

Cosman joined the staff of the U.S. Commission on International Religious Freedom in 2003. Her areas of responsibility include the countries of the former Soviet Union and the Organization on Security and Cooperation (OSCE). She previously served on the staff of the U.S. Helsinki Commission as senior analyst on Soviet dissent.

She also worked with emerging independent labor unions for the Free Trade Union Institute, especially in Kazakhstan and Azerbaijan. In Estonia, she was the Senior Expert of the OSCE Mission, focusing on the integration of the Russian minority. She managed the Central Asian and Caucasus grants program at the National Endowment for Democracy and edited “Media Matters” and “(Un)Civil Societies.”

After receiving her bachelor’s degree in history from Grinnell College, Cosman earned a master’s degree and an ABD in Slavic Languages and Literatures from Brown University. She also studied at the Free University of Berlin and the All-Union Institute of Cinematography in Moscow.

The Burke Auditorium is located in the William G. McGowan School of Business on North River Street. Parking will be available in on-campus lots. For more information, please contact Dr. Bernard Prusak, director, McGowan Center for Ethics and Social Responsibility, at (570) 208-5900, ext. 5689.

More information on the lecture can be found here.

Blackman, “Unraveled: Obamacare, Religious Liberty, and Executive Power”

In September, Cambridge released “Unraveled: Obamacare, Religious Liberty, and Executive Power,” by Josh Blackman (South Texas College of Law).  The publisher’s description follows:

Six years after its enactment, Obamacare remains one of the most controversial, 41s0d2wvleldivisive, and enduring political issues in America. In this much-anticipated follow-up to his critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013), Professor Blackman argues that, to implement the law, President Obama has broken promises about cancelled insurance policies, exceeded the traditional bounds of executive power, and infringed on religious liberty. At the same time, conservative opponents have stopped at nothing to unravel Obamacare, including a three-week government shutdown, four Supreme Court cases, and fifty repeal votes. This legal thriller provides the definitive account of the battle to stop Obamacare from being ‘woven into the fabric of America’. Unraveled is essential reading to understand the future of the Affordable Care Act in America’s gridlocked government in 2016, and beyond.

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

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