The Floersheimer Center at Cardozo Law School has posted a video (below) of last week’s panel discussion on “The Supreme Court and New Frontiers in Religious Liberty,” in which I was honored to participate, along with Nelson Tebbe (Cornell), Elizabeth Reiner Platt (Columbia Law), and Giselle Klapper (Sikh Coalition) . Thanks again to Michael Pollak, Hui Yang, and the Floersheimer team for having me–and for hosting a cordial and productive exchange of disparate views in the best tradition of the legal academy.
New from Munoz on Religious Liberty and the Founding
This month, the University of Chicago Press releases a new book by our friend, Vincent Phillip Munoz (Notre Dame), Religious Liberty and the American Founding. A few years ago, we hosted an online symposium on Phillip’s work on the Founder’s understanding of the natural right of religious liberty–what the right entailed and what it did not entail–and his new book continues to address that subject. Looks very interesting. The publisher’s description is below. Congrats, Phillip!
An insightful rethinking of the meaning of the First Amendment’s protection of religious freedom.
The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.
Around the Web
Here are some important law-and-religion news stories from around the web:
- In CI.G v. Siegfried, the Tenth Circuit reversed a district court’s dismissal of a high school student’s claim that his First Amendment rights were violated when he was expelled for an antisemitic Snapchat post.
- In Ervins v. Sun Prairie Area School District, a Wisconsin federal district court rejected a claim that a sixth-grade lesson on ancient Mesopotamia, which called on students to apply the Code of Hammurabi to a hypothetical situation, amounted to a violation of the Establishment Clause.
- In Gonzales v. Collier, a Texas federal district issued a temporary injunction barring the execution of death row inmate Ramiro Gonzales unless authorities grant all of his requested religious accommodations. Gonzales requests that his spiritual advisor be allowed in the death chamber so she can pray aloud, hold his hand, and place her other hand on his chest.
- In Perlot v. Green, an Idaho federal district court issued a preliminary injunction requiring the University of Idaho to rescind no-contact orders issued to three law students who are members of the Christian Legal Society (“CLS”). The University issued the no-contact orders after the CLS students discussed with a female LGBTQ student the Christian biblical view of marriage and sexuality.
- In Rutan-Ram v. Tennessee Department of Children’s Services, a Tennessee state three-judge panel held that a Jewish couple who were denied foster-parent training by a state-funded Christian child placement agency lacked standing to challenge a Tennessee law permitting faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions.
- In State of Wisconsin v. Whitaker, the Wisconsin Supreme Court rejected a defendant’s claim that his religious liberty and associational rights were violated when the judge sentencing him made reference to his Amish community.
Thanks to the Loyola University Chicago Law Journal
Just a note to thank the organizers of last week’s conference on religious liberty at the Loyola University Chicago Law Journal for hosting me. The event brought together a diverse group of scholars with truly differing points of view–something for which the organizers deserve a lot of praise. I presented a paper on the 50th anniversary this year of Wisconsin v. Yoder and received some very helpful comments. I look forward to seeing my essay in print in a forthcoming symposium edition of the Law Journal, and to reading the other participants’ papers!
Upcoming Symposium on Religious Liberty at Loyola University Chicago
A programming note: I’m looking forward to participating in this upcoming symposium on religious liberty in Chicago later this spring. The editors of the Loyola University Chicago Law Journal have put together a great program and I’m honored to be among the contributors. Details below:
Around the Web
Here are some important law-and-religion news stories from around the web:
- The U.S. State Department released a draft Report of the Commission on Inalienable Rights emphasizing the religious traditions of the country’s founders as well as the primacy of religious liberty.
- The U.S. 5th Circuit Court of Appeals reversed the dismissal of a suit by the former executive director of the General Mission Board of the Baptist Convention for Maryland/Delaware alleging that the Board intentionally made false statements about him that led to his termination.
- The U.S. 9th Circuit Court of Appeals heard oral arguments in a case over how California portrays Hinduism in public school lessons.
- Suit was filed in a Maryland federal district court raising the question of whether a corporation created by the Maryland legislature to operate the University of Maryland Medical Center (UMMS) is a state actor for purposes of the 1st and 14th Amendments, after a Baltimore man sued the UMMS St. Joseph Medical Center for transgender discrimination over refusal to perform surgery.
- A California federal district court refused on procedural grounds to issue a temporary restraining order to a California church that filed suit challenging Governor Newsom’s COVID-19 orders restricting worship services.
- An Indiana federal district court declined to delay the execution of prisoners in two separate cases where the prisoners’ ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy’s rights under RFRA.
- The Vatican issued a detailed guide for clerics on handling clergy sex abuse cases, although the new instructions are not binding and were not enshrined in the church’s canon law.
- Sudan approved wide-ranging amendments to its criminal law, including repealing the death penalty for apostasy; striking down the requirement for women to have a permit from male family members to travel with their children; and banning female genital mutilation.
- A British judge ruled that a Christian adoption and foster care agency does not violate the European Convention on Human Rights by recruiting only Evangelical Christians to be foster parents, though it does violate the Convention when it refuses to place children with Evangelical Christian same-sex couples.
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.