Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Mark noted here. This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country. It’s one that I’ve encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it. The misunderstanding leads commentators, even law professors, to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty. I’ll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context. The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility. If I were a betting man in the mandate context, I’d put the odds somewhere around 60-40 for upholding the mandate.
Catholic Bishops Issue Report on Threats to Religious Freedom
The U.S. Conference of Catholic Bishops today issued a report, Our First, Most Cherished Liberty: A Statement on Religious Liberty, on threats to religious freedom in America and abroad. The report lists several recent actions by the federal and state governments that endanger religious freedom — including the HHS contraception mandate, state laws that forbid assistance to illegal aliens, and moves by public universities to deny recognition to evangelical groups on campus — and discusses the persecution suffered by religious minorities, often Christians, in other parts of the world. The report calls on clergy and lay Catholics, as well as adherents of other faiths, “to impress upon our elected representatives the importance of continued protection of religious liberty in a free society.” In particular, the report proposes that Catholic bishops in America organize a “fortnight for freedom” this summer, a fourteen-day “period of prayer, study, catechesis, and public action [to] emphasize both our Christian and American heritage of liberty.”
Religion in U.S. Foreign Policy, pt. I
As I’ve described briefly in my previous post, the project of historicizing religious freedom is necessarily allied with normative goals and carries normative implications. But before I go to that, I’d like to give a preview of one case study I look at in the dissertation. My project takes a closer look at the American official effort to promote religious freedom as law abroad, an idea historically grounded on the Protestant notion of separation of church and state. A recent book by historian Andrew Preston chronicles the role of religion in U.S. foreign policy from the Founding period to the Obama administration, and in a short companion piece at Foreign Affairs, he argues that precisely because of this history, Obama should take advantage of the fact that the U.S. can also speak in the language of faith when it deals with other countries. I have certain reservations with this general claim but more on that next time. What I do agree with Preston wholeheartedly is that religion played a significant role in U.S. foreign relations. Iraq and Bush were simply part of that ongoing American tradition.
For example, many people know that Woodrow Wilson was a thoroughly devout Presbyterian and that his religious thinking permeated his policies. But what many people don’t know is that he in fact tried to crystallize his concern for religious freedom in the League of Nations Covenant, which met strong opposition from the other Great Powers involved in the negotiations. One of the reasons that France and Britain gave was that the main offenders Russia and Germany were not going to be part of the League anyway so it did not make sense to write it into the Covenant. But while Wilson, for various other reasons, failed to incorporate it in the general Covenant, he succeeded in including it in the several Minority Treaties signed between the Great Powers and the newly-independent countries of Poland, Romania, Hungary and others in Eastern and Central Europe. Articles 2-8 of the Minority treaty with Poland (which served as a template for the others) was in fact called the “Wilsonian core.” Moreover, he was also the one who included it as a guarantee for the inhabitants of Mandate territories.
Now, a question would be why was Wilson interested in doing that? What was in it for the United States? In the same way we ask why is this American tradition present all the way up to Obama? Preston claims that one reason is an exceptionalist conceit of the U.S. as God’s chosen nation. While that is certainly true, there were, as expected, political uses, at least insofar as lawmaking abroad was involved. But it was one that can’t also be thoroughly divorced from the personality involved or from the prevailing attitudes of the time. Woodrow Wilson, lawyer, political scientist, and the last Ph.D. degree holder to become President of this country, was a visionary when it came to foreign relations in many ways, and the League of Nations, though a catastrophic disaster as it might have been, was one big proof of that. But he was also coming from an imperial milieu. Despite the official promise of independence by the U.S. to the Philippines at that time in the form of the Jones Act of 1916 (the first such act by a colonial power in history, by the way), the U.S. was an overtly imperial power under Wilson. Together, the promise of spreading religious freedom elsewhere was in certain ways an act of humanitarian imperialism, probably not very much unlike the underlying ideals of the Covenant itself. But why law? For the longest period before the American victory over Spain in 1898, the U.S. government has been making interventions on behalf of oppressed religious minorities in the Ottoman Empire, but without the lawmaking part. What changed then?
That, and more stories for the next post.
Group Plans Nationwide Rallies for Religious Freedom Tomorrow
A group calling itself the “Stand Up Coalition” is planning a set of rallies across the nation tomorrow (March 23) to protest the HHS contraception mandate. The group’s website states that religious leaders and public figures will speak at the rallies, scheduled to start at noon local time, and predicts that thousands will participate. It’ll be interesting to see how this all plays out, and what sort of media attention the rallies get.
Evan Haefeli, “New Netherland and the Dutch Origins of American Religious Liberty”
A few miles from CLR headquarters in New York City, in the neighborhood of 
Flushing, stands the John Bowne House. Bowne was a seventeenth-century English Quaker who lived in what was then the Dutch colony of New Netherlands. In 1662, he held a Quaker meeting in his home, which greatly irritated Governor Peter Stuyvesant, a strict Calvinist. When Bowne refused to pay a fine for conducting the meeting, Stuyvesant shipped him off to Amsterdam to face the colonial authorities, who sided with Bowne: the Flushing Charter protected religious liberty. Bowne returned to Flushing and has become famous, at least in these parts, as an early advocate for religious freedom. Stuyvesant was deposed two years later when the English seized New Netherlands.
I recount this episode from local history because it doubtless figures in a forthcoming, interesting-looking book by Columbia history professor Evan Haefeli, New Netherland and the Dutch Origins of American Religious Liberty (University of Pennsylvania). The publisher’s description follows.
The settlers of New Netherland were obligated to uphold religious toleration as a legal right by the Dutch Republic’s founding document, the 1579 Union of Utrecht, which stated that “everyone shall remain free in religion and that no one may be persecuted or investigated because of religion.” For early American historians this statement, unique in the world at its time, lies at the root of American pluralism.
New Netherland and the Dutch Origins of American Religious Liberty offers a new reading of the way tolerance operated in colonial America. Using sources in several languages and looking at laws and ideas as well as their enforcement and resistance, Evan Haefeli shows that, although tolerance as a general principle was respected in the colony, there was a pronounced struggle against it in practice. Crucial to the fate of New Netherland were the changing religious and political dynamics within the Read more
Heise and Sisk on Extra-Judicial Factors Influencing Free Exercise Claims
Michael Heise (Cornell Law School) and Gregory C. Sisk (University of St. Thomas School of Law) have posted Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts. The abstract follows.
We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor — judicial ideology — our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decision making more generally.
US Commission on International Religious Freedom Issues Annual Report
The US Commission on International Religious Freedom, a bipartisan, independent agency within the federal government, today issued its annual report on religious freedom violations around the world. The International Religious Freedom Act authorizes the Commission to study violations of religious freedom around the world and name “countries of particular concern” (CPCs) — those countries that have practiced or tolerated “particularly severe” violations of religious freedom, including systematic torture and other human rights violations. This year, the Commission named 16 CPCs: Burma, the Democratic People‘s Republic of Korea (North Korea), Egypt, Eritrea, Iran, Iraq, Nigeria, Pakistan, the People‘s Republic of China, Saudi Arabia, Sudan, Tajikistan, Turkey, Turkmenistan, Uzbekistan, and Vietnam. The problems of Christians in the Middle East are extensively discussed, but so are violations directed at dissenting Muslim and other communities. This annual “naming and shaming” process has drawn criticism as another example of American overreaching, but the designation of CPCs does not always have an impact on American foreign policy. Although IFRA generally requires the President to take action in response to the designation of a country as a CPC, the statute also allows the President to waive this requirement if circumstances warrant, and Presidents often do so — an pattern the Commission criticizes in its report.
Religious Arbitration and the Church of Scientology
CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.
Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.
Goldford: The Constitution of Religious Freedom
This month, Baylor University Press publishes The Constitution of Religious Freedom: God, Politics, and the First Amendment by Dennis J. Goldford. Goldford, Professor of Politics at Drake University in Iowa, argues that the Religion Clauses of the First Amendment do not create a national religious identity, but, instead, create a religious liberty located squarely in the individual. The publisher’s abstract follows:
In a time when the question of American religious identity underlies much political conversation that fills the public square, Dennis Goldford directs his readers to consider the First Amendment. The founding fathers’ words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are the constitutional means of ensuring, however imperfectly, the American freedom to stand for something sacred. In his analysis, Goldford ably demonstrates that the very nature of these religion clauses establishes protection not for religion but for religious freedom. The Constitution of Religious Freedom argues that religious identity inheres not in the nation, but in the individual citizen.
The Immanent Frame on the HHS Mandate
I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law. It is in general a terrific blog.
That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there. Of course, there are many things to discuss with respect to the mandate, and law is only one of those things. It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things. But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights. The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is. There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).
One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect. Here is a portion of Professor Sands’s comments:
Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.
I’ll confine my comments to the statements about the law, which are wrong in several respects. Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law. These statutes apply against the government, not against individual private employers. So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.
Professor Sands’s statement is also potentially misleading with respect to constitutional law proper. It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong. If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application. That proposition is currently being litigated, and we will see what courts hold. If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.