Posted on by Marc O. DeGirolami

Religious Liberty and Political Ideology: Three Perspectives

Here’s an interesting issue for readers’ consideration involving the alignment of support and opposition for religious liberty with political orientation, and whether that alignment is undergoing a fundamental shift or not.  And here are chunks of three writings to set the stage.

The first is from something I wrote a few years ago:

My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics.  It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective.  Of course I don’t mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.

What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars — folks who read both the Free Exercise and Establishment Clauses in a ‘strong’ way.  Read more

Posted on by Mark Movsesian · 1 Comment

NY Times on Stanford’s New Religious Liberty Clinic

Yesterday, the New York Times covered the new religious liberty clinic at Stanford Law School. Nice to see the Times has finally caught up to us.

Posted on by Mark Movsesian · 1 Comment

Controversy over Proposed Christian Law School in Canada

This really isn’t the time to be starting a law school, at least in the United States. Lawyers face uncertain job prospects–the poor economy, outsourcing, and technological innovation continue to reduce demand for lawyers–and fewer and fewer people see a legal education as a good investment. Applications are down dramatically. Maybe this situation is temporary, maybe it’s permanent; we’ll have to wait and see. But starting a law school in this environment–you really have to wonder.

None of these hard facts explains the controversy surrounding a proposed new Canadian law school, however. Trinity Western University (TWU) in British Columbia wishes to start the first religious law school in Canada. The Council of Canadian Law Deans opposes the new school because TWU requires students, faculty and staff to honor traditional Christian sexual ethics: no sex outside heterosexual marriage. This requirement, the deans argue, discriminates on the basis of sexual orientation in violation of Canadian law. TWU maintains that a Canadian Supreme Court case from 2001 allows it to impose the requirement as a matter of religious freedom.

The Federation of Canadian Law Schools, the body that accredits law schools in Canada, has not yet decided whether to grant TWU permission to start its new school. Whatever decision the Federation takes, a lawsuit will no doubt follow. Canadian law on religious exercise uses a balancing test similar to the one in the European Conventi0n on Human Rights. Under that balancing test, government may limit citizens’ freedom of religion if necessary to protect important countervailing interests, including “the fundamental rights and freedoms of others.” Just last week, in fact, the European Court of Human Rights applied this test and ruled that the European Convention allows member states to limit employees’ religious freedom in order to protect the right of same-sex couples to be free from discrimination.

It’s a different jurisdiction, of course, and the Canadian and European cases don’t line up exactly. As a religious university, TWU could raise arguments the European case didn’t address. But, like the European case, TWU’s claim will require judges to balance the right of religious exercise against the rights of sexual minorities. If Canadian judges adopt the ECtHR’s general view of things, TWU’s chances of prevailing in the long run don’t look great.

Posted on by Mark Movsesian

ECtHR to Issue Ruling in UK Religious Freedom Cases Tomorrow

Tomorrow, a chamber of the ECtHR will release its judgment in Eweida and Others v. United Kingdom. As we explained back in September, when the cases were argued, the ECtHR’s ruling could have a major impact on religious freedom jurisprudence under the European Convention on Human Rights:

The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

CLR Forum will have an analysis of the judgment later this week.

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Ragosta, “Religious Freedom: Jefferson’s Legacy, America’s Creed”

In April, the University of Virginia Press will publish Religious Freedom: Jefferson’s Legacy, America’s Creed by John Ragosta (Hamilton College). The publisher’s description follows.

Ragosta sk11.2.inddFor over one hundred years, Thomas Jefferson and his Statute for Establishing Religious Freedom have stood at the center of our understanding of religious liberty and the First Amendment. Jefferson’s expansive vision—including his insistence that political freedom and free thought would be at risk if we did not keep government out of the church and church out of government—enjoyed a near consensus of support at the Supreme Court and among historians, until Justice William Rehnquist called reliance on Jefferson “demonstrably incorrect.” Since then, Rehnquist’s call has been taken up by a bevy of jurists and academics anxious to encourage renewed government involvement with religion.

In Religious Freedom: Jefferson’s Legacy, America’s Creed, the historian and lawyer John Ragosta offers a vigorous defense of Jefferson’s support for a strict separation of church and state. Beginning with a close look at Jefferson’s own religious evolution, Ragosta shows that deep religious beliefs were at the heart of Jefferson’s views on religious freedom. Basing his analysis on that Jeffersonian vision, Ragosta redefines our understanding of how and why the First Amendment was adopted, showing how the amendment’s focus on maintaining the authority of states to regulate religious freedom demonstrates that a very strict restriction on federal action was intended. Ultimately revealing that the great sage demanded a strict separation of church and state but never sought a wholly secular public square, Ragosta provides a new perspective on Jefferson, the First Amendment, and religious liberty within the United States.

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Waldron, “Free to Believe”

This May, the Toronto University Press will publish Free to Believe: Rethinking Freedom of Conscience and Religion in Canada by Mary Anne Waldron (University of Victoria). The publisher’s description follows.CLR_1_8

Free to Believe investigates the protection for freedom of conscience and religion – the first of the “fundamental freedoms” listed in the Canadian Charter of Rights and Freedoms – and its interpretation in the courts. Through an examination of decided cases that touches on the most controversial issues of our day, such as abortion, same-sex marriage, and minority religious practices, Mary Anne Waldron examines how the law has developed in the way that it has, the role that freedom of conscience and religion play in our society, and the role it could play in making it a more open, peaceful, and democratic place.

While the range of cases explored will be of interest to scholars, Free to Believe is also written in an accessible style, with legal terms and concepts explained for those who wish to learn accurate, detailed information about the impact of the law on contemporary social policy issues. As such, this book widens the debate about this fundamental freedom and the influence of public opinion on what is often a misrepresented and misunderstood issue.

Posted on by Mark Movsesian

Working on Sunday

Here’s an update to last week’s post about a movement to curtail Sunday shopping in Europe. In that post, I speculated that allowing stores to open Sundays might create pressure for observant Christian employees: skip church and report to work, or lose your job. It turns out this concern isn’t speculative. In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.

The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer — a government agency, note, in a state with an established church — pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.

Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.

Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to — that is, because otherwise they would lose their Read more

Posted on by Mark Movsesian

Wheeler, “How Sex Became a Civil Liberty”

In America, sex has been constitutionalized. In a series  of opinions over several decades, the Supreme Court has held that the Constitution protects sexually explicit speech, contraception, abortion, and, latterly, homosexual conduct. The Court may be about to declare same-sex marriage a constitutional right. All this has put significant pressure upon traditionalist religions. More and more, fights about religious liberty involve the right to dissent — and to act in ways that reflect that dissent — from the legal consensus on sexuality.

How did this conflict develop? A new book from Oxford University Press, How Sex Became a Civil Liberty (2012), traces the role of one particular organization, the American Civil Liberties Union. Leigh Ann Wheeler (Binghamton University) argues that “creative individuals” at the ACLU “wrote sexual rights into the U.S. Constitution, a document that made no mention of them,” and helped change American culture. She does not simply celebrate these developments, however; she “shows how hard-won rights for some often impinged upon freedoms held dear by others.” Here’s the publisher’s description of the book:

How Sex Became a Civil Liberty is the first book to show how and why we have come to see sexual expression, sexual practice, and sexual privacy as fundamental rights. Using rich archival sources and oral interviews, historian Leigh Ann Wheeler shows how the private lives of women and men in the American Civil Liberties Union shaped their understanding of sexual rights as they built the constitutional foundation for the twentieth-century’s sexual revolutions.

Wheeler introduces readers to a number of fascinating figures, including ACLU founders Crystal Eastman and Roger Baldwin; nudists, victims of involuntary sterilization, and others who appealed to the organization for help; as well as attorneys like Read more

Posted on by Mark Movsesian

Conversations: Stanford’s Religious Liberty Clinic

Last month, we posted the welcome news that Stanford Law School has founded the nation’s first law school clinic focused on religious liberty. This week, the new clinic’s director, Jim  Sonne (left), kindly agrees to answer some questions for us. He discusses, among other things, the clinic’s background, the sort of cases and clients it hopes to attract, the reception the clinic has received at Stanford, and the difference between a “religious liberty” and a “religion” clinic.

CLR Forum: Jim, congratulations on starting the country’s only law school clinic devoted to religious liberty. How did you come up with the idea? And why Stanford?

Thanks Mark! The original idea for the clinic was not mine, but Eric Rassbach’s at The Becket Fund for Religious Liberty. Eric and the Becket Fund work closely with Professor Michael McConnell at Stanford. Eric, Professor McConnell, and the folks at Becket thought it would be a great project to bring here.

Coincidentally, while the Becket group was busy preparing a proposal to Stanford in concert with the Templeton Foundation, then-dean Larry Kramer and dean of clinics Larry Marshall were exploring with the faculty ways to expand and diversify the law Read more

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Politics and Religious Freedom Theory

In a forthcoming book, which has already transformed the field and is available for preorder now, Marc DeGirolami divides theoretical work on religious freedom into three schools or camps: monist, pluralist, and skeptical.  That typology is accepted by many scholars.  Monists are thought to believe that law in the area can be attractively explained by a single value or principle, pluralists are seen to argue that only multiple concerns can account for the full range of religious freedom outcomes, and skeptics reportedly contend that a coherent theory of religious freedom doctrine is impossible.  DeGirolami takes a new cut at this typology, noticing that some writers approach the task with a sense of tragedy, whereas others have a more sanguine disposition.

Here, I want to explore a different feature of this threefold scheme—its intersection with politics.  A notable feature of the typology is that it has been understood to cut across political affiliations.  (When I use the term politics here, I mean to refer to the recognized affinities that characterize wider policy conversations nationally.)  Each of the three schools has been thought to contain both political liberals and political conservatives.  Often, methodology and party politics have intersected in unusual and interesting ways, on this way of thinking.  Monism is perhaps the least politically diverse, but if Justice Scalia counts as a member of that school, then it too spans the aisle.

Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists.  First, has this conceptualization of the field ever been correct?  Has the role of politics been as complicated and unpredictable as it suggests?

If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment.  Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology.  Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism.  For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience.  Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory?  Is any such shift clarifying or obfuscatory?