Posted on by Mark Movsesian

Happy Birthday, Edict of Milan

We didn’t want to let the month pass without noting the 1700th anniversary of the Edict of Milan, one of the most important events in the history of religious liberty. In February 313, the emperors Constantine (left) and Licinius met in Milan to discuss imperial business. While there, they agreed to grant religious freedom to Christians–and, incidentally, everyone else in the Roman empire. Their decision came to be known as an “edict,” though it’s not clear an official document ever issued. The historian Eusebius supplies the text:

When I, Constantine Augustus, and I, Licinius Augustus, came under favorable auspices to Milan and took under consideration everything which pertained to the common weal and prosperity, we resolved among other things, or rather first of all, to make such decrees as seemed in many respects for the benefit of every one; namely, such as should preserve reverence and piety toward the deity. We resolved, that is, to grant both to the Christians and to all men freedom to follow the religion which they choose, that whatever heavenly divinity exists may be propitious to us and to all that live under our government.

We have, therefore, determined, with sound and upright purpose, that liberty is to be denied to no one, to choose and to follow the religious observances of the Christians, but that to each one freedom is to be given to devote his mind to that religion which he may think adapted to himself, in order that the Deity may exhibit to us in all things his accustomed care and favor.

Note a couple of things. The edict does not, as commonly believed, make Christianity the state religion. That decision came later, under a different emperor, Theodosius–which suggests that Christians who condemn the “Constantinian compromise” that weakened the faith have got their emperors wrong. And, although it is famous for legalizing the practice of Christianity in Rome, the edict does not cover only Christians. It grants religious liberty to everyone in the empire. Everyone should follow the religion he thinks best, the edict proclaims, so that “whatever heavenly divinity exists” will continue his favors to Rome. Which puts one in mind of Gibbon’s famous jibe: to the magistrate, all religions are equally useful.

At length, Licinius changed his mind about the edict and began persecuting Christians in his part of the empire. A power struggle followed; Constantine eventually defeated Licinius, thereby becoming sole emperor. Constantine was always cagey about his own Christianity, perhaps because he wished to avoid upsetting those powerful Romans who remained pagan. He advanced the interests of the church and influenced (or interfered in) doctrinal developments, but he did not actually become a Christian until shortly before his death. Today, both he and Theodosius are commemorated as saints in Eastern churches. Licinius? Not so much.

Posted on by JCPW

Brownstein on the Religious Liberty of Religious Institutions

Alan E. Brownstein (University of California, Davis – School of Law) has posted Protecting the Religious Liberty of Religious Institutions. The abstract follows.

This article is a preliminary inquiry into the question of whether the freedom of the Church, as a distinct religious institution, can be justified from an American legal perspective. The first part of the article identifies respect for the individual dignity and autonomy of the person as a primary justification for providing distinctive legal protection to religious liberty. It goes on to discuss whether distinctive religious liberty protection for religious institutions can be derived from the dignitary interests of the institution’s members – and if so, whether there is some limit beyond which institutional religious liberty claims cannot be grounded in the individual dignitary interests of congregants or constituents.

The second and longer part of the Article examines whether an argument for protecting and accommodating the autonomy of religious institutions can be grounded in American history during the 1700’s and early 1800’s. The history of this period includes multiple cross currents of values and interests that very by time and region – making it difficult to reach more than tentative conclusions. However, the Protestant commitment by religious liberty proponents to the belief that each man must judge for himself on matters relating to religion, the virulent anti-Catholicism of the period, at least some of which may be attributed to fear of and antipathy toward top down ecclesiastical hierarchy, and the prevalence of anti-clerical attitudes suggest some limits to the American commitment to the freedom of the Church as an institution. Clearly, a sphere of religious liberty extended to the local congregation and to a considerable extent to democratically created and accountable ecclesiastical decision-making bodies. It may be argued, however, that Americans of this period viewed non-democratic, hierarchical religious institutional structures – that challenged the intrinsic right of individual conscience in matters of faith – to be much less deserving of respect and protection.

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Oleske on Lukumi Babalu Aye

James M. Oleske Jr. (Lewis & Clark Law School) has posted Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws. The abstract follows.

Twenty years after the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. That exception – which this Article calls the “selective-exemption rule” – provides that religious exemptions may still be required by the Free Exercise Clause when the government has selectively made available other exemptions to a law.

This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the received reading of the leading circuit court decision interpreting the rule. Relying heavily upon that reading, prominent religious liberty advocates have been pressing for a remarkably broad Read more

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Schlereth, “An Age of Infidels”

Next month, University of Pennsylvania Press will publish An Age of Infidels: The Politics of Religious Controversy in the Early United States by Eric R. Schlereth (University of Texas).  The publisher’s description follows.An Age of Infidels

Historian Eric R. Schlereth places religious conflict at the center of early American political culture. He shows ordinary Americans—both faithful believers and Christianity’s staunchest critics—struggling with questions about the meaning of tolerance and the limits of religious freedom. In doing so, he casts new light on the ways Americans reconciled their varied religious beliefs with political change at a formative moment in the nation’s cultural life.

After the American Revolution, citizens of the new nation felt no guarantee that they would avoid the mire of religious and political conflict that had gripped much of Europe for three centuries. Debates thus erupted in the new United States about how or even if long-standing religious beliefs, institutions, and traditions could be accommodated within a new republican political order that encouraged suspicion of inherited traditions. Public life in the period included contentious arguments over the best way to ensure a compatible relationship between diverse religious beliefs and the nation’s recent political developments.

In the process, religion and politics in the early United States were remade to fit each other. From the 1770s onward, Americans created a political rather than legal boundary between acceptable and unacceptable religious expression, one defined in reference to infidelity. Conflicts occurred most commonly between deists and their opponents who perceived deists’ anti-Christian opinions as increasingly influential in American culture and politics. Exploring these controversies, Schlereth explains how Americans navigated questions of religious truth and difference in an age of emerging religious liberty.

Posted on by Marc O. DeGirolami · 1 Comment

On Corporations, Their Purposes, and Their “Exercise of Religion” Under RFRA

Kevin Walsh (Richmond) has a superb post about the question whether for-profit corporations are “persons” who “exercise religion” pursuant to RFRA.  He makes his claims in the context of criticizing a recent panel decision of the Third Circuit.  You should read the whole thing, but here is a selection:

RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion” unless the government satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(a) (emphasis added). In the U.S. Code, “person” ordinarily encompasses “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Nothing in RFRA excludes corporations generally. To the contrary, it is plain that corporations can assert claims under RFRA. The only Supreme Court case applying RFRA against the federal government involved a claim asserted by a corporation, O Centro Espírita Beneficente União do Vegetal . . . .

When one analyzes the claim, it turns out that the argument is not really about the meaning of the word “person” (even though the conclusion of the argument purports to be a claim about the meaning of this word). Rather, the argument pivots on “exercise of religion.” In the words of the district court opinion adopted by the Third Circuit, “a for-profit, secular corporation cannot exercise religion.”

Again, the claim is not that corporations cannot engage in exercise of religion. After all, corporations can, and do, exercise religion. Consider, for example,Church of Lukumi Babalu Aye, Inc. or Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The claim, rather, is limited to “secular, for-profit corporations.” But the claim rests on a mistake about “exercise of religion” under federal law and a mistake about corporate action.

For Kevin’s arguments about the meaning of “exercise of religion” under RFRA and about the purposes of corporate action, read the post.  I will add that on the former point, it is unquestionably the case that as a historical matter, refusals to behave in a certain way may be “exercises of religion”: two of the earliest religious exemption questions — the Quakers’ resistance to military conscription and the opposition in some religious communities to swearing oaths — take just this form.

Posted on by Marc O. DeGirolami

Podcast on “First Amendment Institutions”

Paul Horwitz and I discuss his book in this podcast, the latest in the Federalist Society’s worthwhile series of conversations on new books.

Our written exchange is here.

Posted on by Marc O. DeGirolami

Conversations: Paul Horwitz

I had the pleasure and good fortune of sitting down with my good friend, Paul Horwitz (Alabama), a Paul Horwitzcouple of  weeks ago to talk with him a little about his superb new book, First Amendment Institutions (2013), under the auspices of a Federalist Society program that considers interesting and important new books.  I will post the podcast of that interview when it is ready.  But Paul also generously agreed to answer some written questions about the book, which ranges over all manner of First Amendment subjects, including, of course law and religion, for our ‘Conversations’ feature here at CLR Forum.

Q: The book, as its title indicates, is concerned with examining First Amendment disputes from an institutional point of view.  You define institutions as organizations comprised of individuals bound together by some common purpose to achieve certain objectives.  Why are institutions particularly important phenomena to study when it comes to the First Amendment?  After all, when one thinks of personal expression or religious practice, one does not think immediately of institutions.  Indeed, the paradigmatic case of speech or religious exercise is, for many, not about institutional or organizational rights but about individual rights.

A: I don’t think they’re uniquely important phenomena to study when it First Amendment Institutionscomes to the First Amendment. But I absolutely believe that they’re important phenomena to study, for at least three reasons. 1) A good deal more individual speech is formed or influenced by or within those institutions than the paradigm case may acknowledge. 2) Much important speech or activity takes place within those institutions. 3) These institutions often play an important structural role in public discourse.

Q: One of the major methodological issues that you raise – applicable both to the First Amendment and, you suggest, to all of law – is the law’s tendency toward acontexualism.  You say, for example, that law is indifferent to real world context and is instead only interest in analysis according to concepts of its own making.  Judges think about the cases that come before them in distinctively legal categories.  Could you say more about this and how it pertains specifically to the sorts of issues that you tackle in FAI?  More than this, can you explain why it is an inapt way to think about such cases?

A: Of course, there are lots of reasons why it is not a bad thing for judges to think acontextuality. Most of them involve what we think of as rule of law values, while others have to do with reasons of the particular institutional competences of the judiciary. That said, like any reasoning device or habit of mind, acontextuality can end up obscuring or missing important facts, contexts, and details. The point of acontextuality, in part, is to think only about morally relevant differences or similarities between things; but too acontextual a view can end up missing some of those morally relevant distinctions, especially where First Amendment institutions are concerned.

Q: A different question about acontextuality.  Sometimes it seems that what you describe as the snare of acontextuality is just as much a debate about whether facts or doctrine should rule as it is a fight about which facts are the (morally) salient ones.  For example, in your discussion of Arkansas Educational Television Comm’n v. Forbes, you say that the 8th Circuit got hung up in trying to slot the commission as a public entity, and so it did not see that it was simply exercising its journalistic discretion like a private broadcaster might.  But one might recharacterize what the court did as valuing certain types of facts (the issue of the commission’s private status) MORE than other sorts of factors.  Even though the Supreme Court reversed, isn’t this really a fight about which facts are relevant, more than a fight about whether facts or legal categories matter.

A: This is a fair pushback, I think. But I suppose I would say that cases like Forbes were more about finding what the court considered legal categories than about considering facts or context as such. Certainly, however, there is a relationship between legal categories and morally relevant facts. The question is whether the fixation on legal categories can end up failing to see other kinds of relevant categories.

Q: A question about the relationship of institutionalism and acontextualism. Can one be a formalist about institutional categories?  It seems that Professor Fred Schauer’s approach, which is important for your own, espouses something like this position.  Is there a necessary connection between a focus on institutions and a contextual method?

Read more

Posted on by Marc O. DeGirolami

Proposed Tweaks to the Existing HHS Contraception/Abortifacient Mandate Regulations

I’m somewhat delayed (but only by a day) in posting this item about the Obama Administration’s proposed new regulation on this issue.  Frankly, I waited  because (a) I have a hard time understanding some of the bureaucrateze; (b) after mulling it over a little last night, I’m still not exactly sure what the proposed tweaks actually change; and (c) these tweaks are only proposed (something the headline of the New York Times story on the subject today misrepresents).  The document is 80 pages, but for those looking to get a quick handle on it, I recommend focusing on roughly pp.18-31.  That’s where most of the action is.

Rick Garnett and Tom Berg have some reactions to what the proposal does at Mirror of Justice.  For summary purposes, their initial take, combined with some thoughts of my own, is that:

  1. The new regulation would not protect for-profit entities of whatever size.  This seems clearly a correct reading.  The proposed regulation says that “The Departments do not propose that the definition of eligible organization extend to for-profit secular employers. Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, are available to nonprofit religious organizations but not to for-profit secular organizations. Accordingly, the Departments believe it would be appropriate to define eligible organization to include nonprofit religious organizations, but not to include for-profit secular organizations.”  (P.23)
  2. As to non-profits, the situation changes in the following ways.
    1. First, on the issue of who gets covered as a “religious employer,” the Administration would remove language that would have permitted it to inquire about the institution’s “inculcation of religious values” and about whether the entity serves “primarily” co-religionists.  Instead, there would be a reversion to IRS rules about who counts as a religious employer.  And if you read pages 19-20, you will see that this definition is limited to those institutions that are “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”  Rick and Tom both believe that this definition would include “integrated” units of churches (for example, a soup kitchen or school actually operated by a church) but not independent faith-based non-profits (for example, Catholic Charities).  The proposal states that using this definition would effectively cure all excessive entanglement problems.  I am doubtful about this, but I do agree that some of the more egregious entanglement problems associated with the inquiries about “inculcation” and percentage of co-religionists would be cured.  The government notes that it “welcome[s] comments on this proposal, including whether it would unduly expand the universe of employer plans that would qualify for the exemption and whether additional or different language is needed to clarify the scope of the exemption.”
    2. For those that do not qualify for the exemption above but that meet various criteria (see page 22 for the four part requirement, and also page 48), pursuant to the “accommodation” mentioned by the Administration at earlier points, it now appears that non-profits will have their insurers pay, and there will be some sort of certification by the insurer that the non-profit has not borne the cost of the coverage.  It appears that this proposal would cover non-profit institutions like religiously affiliated universities, charities that do not qualify under 2(A), and so on.  The language is: “the health insurance issuer providing group coverage in connection with the plan would assume sole responsibility, independent of the eligible organization and its plan, for providing contraceptive coverage without cost sharing, premium, fee, or other charge to plan participants and beneficiaries.”  (23)
      1. How, one might wonder, does the government propose to require that the insurer not pass along the costs of this proposal to the insured?  This is what the government says: the insurer must provide coverage that “is not included in the group policy, certificate, or contract of insurance; such coverage [must not] not [be] reflected in the group health insurance premium; and … no fee or other charge in connection with such coverage [must be] imposed on the eligible organization or its plan.  The proposed rules would further direct the issuer receiving the copy of the selfcertification to provide contraceptive coverage under individual policies, certificates, or contracts of insurance (hereinafter referred to as individual health insurance policies) for plan participants and beneficiaries without cost sharing, premium, fee, or other charge.”  The government states that this means that the coverage is provided at “no cost” to the objecting institutions, but for reasons that have been discussed earlier, that is subject to question.  The proposal also includes the (to me) silly view — which the government has repeatedly advanced — that all of this will save the insurers money.  If that were true, one can be sure that the insurers would have provided this coverage for free long ago.
  3. Finally, it is not clear to me exactly what the proposal does with respect to self-insured entities.  The discussion begins at page 27, where the government states that it is “considering alternative approaches.”  There is some discussion about the role of “third-party administrators” in such plans, but I am afraid that I just do not know enough about the way in which self-insured entities manage their affairs to know what this would mean.  There is also language on this at page 67 which indicates that this issue has been “reserved.”  Once I get a better sense of this issue, I may post something else.

It’s probably worth saying that these are proposals only subject to notice and comment.  They aren’t the final rule.  But they obviously give a pretty good idea about what the Administration’s plan is likely to be.

Posted on by Marc O. DeGirolami

Conference, “Religious Freedom, Legal Pluralism and Democratic Constitutionalism”

Our friend Claudia Haupt (Columbia) reaches out with news of an interesting looking conference organized by political scientist Jean Cohen: “Religious Freedom, Legal Pluralism and Democratic Constitutionalism” at Columbia University on February 22-23.  Details follow.

Please save the date for:

Religious Freedom, Legal Pluralism and Democratic Constitutionalism
Organized by Political Science Professor Jean L. Cohen, Columbia University

Room 707, International Affairs Building

Friday, February 22, 2013

10:00am–12:00pm: Panel on Constitutionalism and Legal Pluralism

Paper by Dieter Grimm (Humboldt University) with comments by Andrew Arato (The New School)

2:00–4:00pm: Panel on Religious Legal Pluralism and Family Law

Paper by Linda McClain (Boston University) with comments by Mirjam Kunkler (Princeton University) and Karen Barkey (Columbia University)

Saturday, February 23, 2013

Room 707, International Affairs Building

10:00am–12:00pm: Panel on Republicanism and Freedom of Religion

Paper by Michel Troper (Paris X) with comments by Claudia Haupt (Columbia Law) and Stathis Gourgouris (Columbia University)

2:00–4:00pm: Panel on Freedom of Religion and Religious Establishment

Paper by Larry Sager (University of Texas, Austin) with comments by Nancy Rosenblum (Harvard University)

Posted on by Mark Movsesian

Panel on Bronx Household of Faith (Feb. 20)

The New York Lawyers Chapter of the Federalist Society will host a panel discussion, “Can Government Deny the Use of Public Space for Religious Services? Bronx Household of Faith v. NYC Department of Education,” in New York on Wednesday, February 20. Speakers include Jordan Lorence (Alliance Defending Freedom) and CLR Forum Guest Author Nelson Tebbe (Brooklyn Law School). Details are here.