Posted on by Mark Movsesian

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.

Posted on by Mark Movsesian

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.

Posted on by Liam Ray

Around the Web

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

Posted on by Jason Mansmann

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.

Posted on by Christina Vlahos

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.

Posted on by L&R Forum

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

Posted on by Jason Mansmann

Symposium: Religious Liberty and the Black Church (Washington D.C, November 10)

On November 10, the Baptist Joint Committee for Religious Liberty will present a symposium titled “Religious Liberty and the Black Church: A Baptist Joint Committee Symposium” at Howard University Divinity School and Law School. The featured speaker at the symposium will be Rev. Dr. Raphael G. Warnock. A brief description of the event follows:

baptist-joint-committe-for-religious-libertyThe Rev. Dr. Raphael G. Warnock will headline a lecture and panel discussion in Washington, D.C., focusing on religious liberty and the black church.

On Thursday, November 10, Warnock will speak on the campus of Howard University Divinity School and Law School. The symposium events are free and open to the public, and more information will be released in the future. Both presentations are also part of the Howard University School of Divinity Centennial Alumni Convocation.

Posted on by L&R Forum

Thomas: Religious Liberty and Jurisdictional Separation

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, George Thomas (Claremont McKenna) responds to Muñoz. For other posts in this series, please click here. 

Phillip Muñoz’s jurisdictional understanding of religious liberty is a powerful and persuasive challenge to the idea that religious liberty demands exemptions from otherwise valid laws. Yet I want to start with an area of agreement between Muñoz’s jurisdictional understanding and Michael McConnell’s exemptionist understanding. Both Muñoz and McConnell begin with religious liberty as a natural right that circumscribes state authority. This is altogether fitting. But it is only half the story. While civil power was a threat to religious liberty, religion itself was the source of civil disorder and religious oppression. Religious liberty was also then, particularly in the hands of James Madison, a way to limit theological authority and bring about civil peace by making religion a matter of individual choice.

Madison wrote to William Bradford, a friend from his days at Princeton, of the “diabolical, hell conceived principle of persecution” that drove those—including the clergy— who used government to enforce religious orthodoxy. Madison’s inalienable right to religious liberty, with its attendant separation of religion from civil government by way of the social compact, would keep the government out of theological disputes; yet it would just as surely prevent religious sects from using the government to enforce their beliefs. Muñoz is thus right to argue that a jurisdictional understanding of religious liberty is no small achievement. While he nods to the Middle East to make this point, he could just as easily turn to America’s history.

As America was debating the religion clauses of the Constitution, England was debating repeal of the Test Acts, which required those who held public office to take communion according to the rites of the Church of England. This was the very sort of religious test for public office that the American Constitution rejected in Article VI. The Test Acts stood alongside the Act of Toleration, so while religious dissenters were tolerated their religious liberty was conditional. They were not able to hold public office until the acts’ repeal in 1828 or to attend Oxford and Cambridge until the Universities Tests Act of 1871. Back when the free exercise clause was being framed, defenders of religious tests saw them as an essential part of having an established church (and included the likes of William Blackstone and Edmund Burke). Madison worried that such “zealous adherents” to religious hierarchy persisted in America. And they did.

A number of state constitutions required religious tests for office and otherwise favored established churches. Indeed, we might best understand the “peace and safety provisions” of state constitutions at issue between Muñoz and McConnell as remnants of Read more

Posted on by L&R Forum

Franck: Religious Liberty–Cores and Peripheries, Courts and Legislatures

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, Matthew J. Franck (Witherspoon Institute) responds to Muñoz. For other posts in this series, please click here. 

In his most recent work, Vincent Phillip Muñoz continues to make his mark as one of our most thoughtful and searching students of the American founding, of the constitutional principle of religious liberty, and of the meandering course of the Supreme Court’s jurisprudence on the free exercise of religion. In his latest articles in the American Political Science Law Review and the Notre Dame Law Review, and in his briefer essay for the Law and Religion Forum to kick off this symposium, he writes with his characteristic verve and clarity, as well as his usual familiarity with a wealth of relevant sources in the founding era.

I propose in this response to discuss Muñoz’s most significant contributions to our understanding of the constitutional law of religious freedom, and then to enumerate some more problematic features of his argument, along the way posing some questions. In some cases these questions will be real questions—that is, the kind to which I do not claim to have the answer, but to which I think Muñoz has not supplied one either. Attentive readers should be able to tell which those are.

The Good Stuff

Muñoz is right to remind us that, in the thought of the founding generation, religious freedom is a natural right, not merely a species of toleration granted or withheld at the government’s discretion. From the founders’ perspective, religious liberty is pre-political, grounded in our duty to God as we understand it, and taking precedence over the competing claims of the state, or even of the civil society that exists prior to the state and is responsible for creating it.

For multiple purposes, not just for understanding religious freedom, we do well to understand, as Muñoz does, that the founders’ social compact theory entailed two crucial but distinct steps in the creation of political authority. First is the formation of civil society itself, by the mutual and unanimous compact of natural persons with one another. Second is the establishment of government, by the choice of a majority of those persons in that society. What those individuals surrender, and what they retain—including those things not even in their power to surrender—will determine the boundaries of power that constrain a limited government.

Among the things identified by many of the founders—and implied in many of their public documents declaring rights, and establishing and limiting governments—as never surrendered, nor subject to being surrendered, is what Muñoz calls the individual’s “natural right to religious liberty.” It Read more

Posted on by Christina Vlahos

“Religious Liberty” (Robinson & Williams, eds.)

This month, Cambridge University Press releases “Religious Liberty: Essays on First Amendment Law,” edited by Daniel Robinson (University of Oxford) and Richard Williams (Brigham Young University).  The publisher’s description follows:

The principal aim of the establishment and free exercise clauses of the First Amendment was to preclude congressional imposition of a national church. A balance was sought between states’ rights and the rights of individuals to exercise their 9781107147607.jpgreligious conscience. While the founding fathers were debating such issues, the potential for serious conflict was confined chiefly to variations among the dominant Christian sects. Today, issues of marriage, child bearing, cultural diversity, and corporate personhood, among others, suffuse constitutional jurisprudence, raising difficult questions regarding the nature of beliefs that qualify as ‘religious’, and the reach of law into the realm in which those beliefs are held. The essays collected in this volume explore in a selective and instructive way the intellectual and philosophical roots of religious liberty and contemporary confrontations between this liberty and the authority of secular law.