Georgetown’s Berkley Center will host a conference, “Christianity and Freedom: Historical and Contemporary Perspectives,” this Friday, December 14, in Washington, DC. RSVP is required; details are here.
Mead on the “Christian Taliban” at West Point
At the always valuable Via Meadia, Walter Russell Mead has an interesting post concerning last week’s allegations by a former cadet that a “Christian Taliban” harasses non-believers at the US Military Academy. Mead is skeptical it’s as bad as the former cadet says and argues that Christianity in the military is a good thing. Nonetheless, he says, it’s important to strike a balance between the rights of believers and non-believers and he suggests that West Point review the situation. Serious Christians know, he writes, that their faith requires them to show “respect, fairness, and friendship for those outside the fold.”
Lecture on Christians in the Middle East
This Thursday, November 29, I’ll be giving a lecture, “Equality for Christians in the Middle East, Yesterday and Today,” at the Armenian Orthodox seminary in New Rochelle, New York. My lecture will discuss the precarious state of Christian communities in the Middle East and the reasons why the goal of real legal equality has proved so elusive. Details are here. CLR Forum readers in the neighborhood, please stop by and say hello!
Domingo on the Dworkinian Approach to Religious Freedom
Rafael Domingo (U. of Navarra) has posted Religion for Hedgehogs? An Argument against the Dworkinian Approach to Religious Freedom. The abstract follows.
According to Ronald Dworkin, the right to freedom of religion is a mere implication of a more general right of ethical independence in foundational matters. For Dworkin, just as a particular religion cannot be treated as special in politics, religion cannot be considered sui generis in the political arena. This article argues that the right of religious freedom should be regarded as sui generis. The epistemological and ethical theories that support a Dworkinian approach to religious freedom are reductive and misconceived. These theories close the door to transcendent meaning and revealed religion, to a conception of religion as a fact and a value. The Dworkinian paradigm does not sufficiently protect the principles of pluralism and self-determination that are at the heart of religious freedom. Finally, this article argues that, when properly understood, the right to religious freedom is based on ethical autonomy and the unity of the person rather than on Dworkin’s theories of ethical independence and the unity of value.
Federal District Court in DC Grants Preliminary Injunction Against Enforcement of Contraception Mandate
Another victory for plaintiffs challenging the ACA’s Contraception Mandate: on Friday, a federal district court in Washington, D.C., granted a preliminary injunction to Tyndale House, a publishing company that had challenged the mandate under RFRA.
The court ruled that Tyndale House, a small, closely-held firm with a pervasively Christian corporate culture, had standing to bring a RFRA claim on two alternative theories, either as the alter-ego of its owners or as a third-party representative of the primary owner, the Tyndale Foundation. On the merits, Tyndale House had shown its RFRA claim was very likely to succeed. The mandate substantially burdened the firm’s exercise of religion by forcing it to cover contraceptives that violated its religious beliefs or face “enormous” financial penalties. The government, for its part, had failed to show a compelling interest to justify this burden. Although public health and women’s equal access to healthcare were both, broadly speaking, compelling interests, the government had not shown why those interests required this plaintiff to cover the contraceptives in question. The court stressed that Tyndale House had objected only to certain contraceptives, not all, and that the government had already exempted many other firms from the mandate.The court briefly discussed the “irreparable harm,” “balance of the equities,” and “public interest” tests, and ruled in favor of Tyndale House on each.
So far, there have been four district court decisions on the legality of the mandate as it applies to for-profit companies: three have granted plaintiffs preliminary injunctions, one has not. Friday’s case is Tyndale House Publishers v. Sebelius (D.D.C., Nov. 16, 2012).
Stanford Starts Religious Liberty Clinic
This is welcome news. Next semester, Stanford Law School will start the nation’s first law school clinic focused on religious liberty. Here’s the announcement from the Stanford website:
The Religious Liberty Clinic is the newest addition to the Mills Legal Clinic, and is presently the only clinic of its kind in the country. The clinic will offer participating students a dynamic, real-world experience representing a diverse group of clients in disputes arising from a wide range of religious beliefs, practices, and customs in a variety of circumstances. Students will learn in class and apply in practice the laws affecting religious liberty, whether statutory or constitutional, and will be expected to counsel individual or institutional clients and litigate on their behalf with technical excellence, professionalism, and maturity.
During the term, students can expect to handle a discrete accommodation project—e.g., represent a prisoner, student, or employee facing obstacles in the exercise of his or her faith—and likely also participate in a longer-term project involving religion in the public square—e.g., represent a small church, synagogue, or mosque with zoning issues, or a faith-based group seeking access to public facilities. Opportunities to draft amicus briefs may also arise. The clinic will involve administrative, trial, and appellate practice—though time constraints may not permit each student to work in all areas—united under the theme of “religious liberty for all.” Because the clinic is a new and unique venture, students may also help in marketing and outreach efforts to the religious and wider communities.
The clinic will be directed by James Sonne, formerly of Ave Maria Law School.
The fact that a law school of Stanford’s prominence is starting a clinic focusing on religious liberty suggests how important this field is becoming. A few years ago, Stanford hired Michael McConnell, one of America’s foremost law and religion scholars, to direct its Constitutional Law Center. It looks like Stanford is making a serious play to become a leader in law and religion studies in the United States.
The Catholic Vote and the Contraception Mandate
Here’s an interesting piece of data from Tuesday’s exit polls: President Obama won the Catholic vote. The margin was narrow — 50%-48%, which more or less mirrors the President’s popular-vote victory — but, still, he won. Now, you might say, this isn’t surprising. Catholics have traditionally leaned Democratic, and President Obama’s campaign stressed social justice concerns that resonate with Catholic teaching. One should remember, though, that the Obama Administration imposed the contraception mandate, and that Catholic bishops made the mandate a salient issue. Requiring Catholic institutions to provide contraceptives and abortifacients to employees, the bishops said, seriously threatens Catholics’ religious freedom. Apparently, the majority of Catholic voters disagreed. Or thought that the threat to religious freedom, if it existed, was not as important as other issues, like increasing taxes on wealthy Americans and leaving entitlement programs untouched. Perhaps Latino Catholics voted “ethnicity” rather than “religion.” Who knows? The point is, the majority of Catholic voters apparently did not accept the bishops’ understanding of the importance of the issue.
Leaving aside whether voters who disregard their bishops’ views on the contraception mandate are erring as Catholics – a question on which I’m not qualified to state an opinion — I wonder what implications this vote has for the future of the mandate. Legally, the lawsuits under RFRA will go forward, and I think they have a fair shot at success. But the atmosphere may have changed. It won’t show up expressly in judicial opinions, of course, but I wonder whether judges who support the mandate won’t feel more emboldened to find that the mandate doesn’t “substantially burden” Catholic institutions. And I wonder whether the Obama Administration won’t feel more comfortable taking a hard line on whatever “accommodation” they are preparing for the final regulations, due before August 2013. The courts may or may not follow the election returns, but politicians surely do.
Coptic Church Names New Pope
A follow up to Thursday’s post: on Sunday, the Coptic Orthodox Church named its 118th pope, Tawadros, a bishop from the Upper Nile region. Pope Tawadros now has what Walter Russell Mead ruefully calls “the toughest job in the world”: negotiating for the Christian minority in an Egypt governed by the Muslim Brotherhood. The Brotherhood, as well as their political rivals, the even more fundamentalist Salafists, have talked about increasing the role of Islamic law in Egypt. The National (United Arab Emirates) reports:
At the center of the political squabbling in Egypt is the role of Islam in the country’s new constitution, currently being drafted. . . . Christians, along with liberal and secularists, oppose demands by Islamists to increase the role of Shariah. The prospects of a stronger role for Islamic law in legislation increase the community’s concern of further marginalization, or of a curtailing of their rights of worship and expression.
Al Jazeera also has interesting coverage, including a group interview with scholars and representatives from the Muslim Brotherhood and the Coptic Church.
District Court Grants Preliminary Injunction in Contraception Mandate Challenge
Another victory (though perhaps only temporary) for plaintiffs challenging the Affordable Care Act’s contraception mandate under RFRA. A federal district court in Michigan has granted a preliminary injunction barring enforcement of the mandate against a for-profit corporation whose owners object to complying with the mandate because of their Catholic beliefs. According to Judge Robert Cleland, neither the corporation nor the government had made a strong showing of success on the merits: the mandate might be the least restrictive means of achieving a compelling state interest, but the question was close. Given the religious freedom concerns here, however, the balance tipped in favor of granting the preliminary injunction, in order to avoid irreparable harm to plaintiffs while the case continued. The court dismissed a challenge to the mandate brought by a non-profit Catholic organization on the ground that the organization fit within a temporary regulatory safe-harbor and had not yet suffered a cognizable injury. The case is Legatus v. Sebelius, 2012 WL 5359630 (E.D. Michigan, Oct. 31, 2012).
USD Institute for Law and Religion: Garnett and Koppelman Debate Religious Liberty
Sorry I’ve been off-line for a bit — we are without power over here and trying to saw our way out of a tree strewn neighborhood — but I wanted to use the generosity of a coffee-shop hotspot to link to a really terrific debate between constitutional titans Rick Garnett and Andy Koppelman hosted by the San Diego Institute for Law and Religion and our friend (who is himself pretty titanic) Steve Smith. The subject of the debate: “Is Religious Freedom in America at Risk?” Professor Koppelman is clearly in a feisty, debating mood, as readers may remember that he took on Mike Paulsen over here at St. John’s a few weeks earlier. You can view the USD debate here.