Posted on by ascarcella

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Anthony Nania

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Daniel Vitagliano

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Liam Ray

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Marc O. DeGirolami

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company….The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.

Posted on by Nathan Oman

Markets, Religion, and the Limits of Privacy

In modern, Western societies religion is tied up with the idea of privacy. In the wake of the Wars of Religion, religious and political thinkers invented the idea of a private sphere in which one could practice one’s religion separately from the public sphere of political action. The idea of privatizing religion has proven powerful and on the whole hugely beneficial. It allows for religious toleration and religious pluralism without suppressing religious belief and practice. Believers must simply keep their religion private, or perhaps more precisely we define as private the religious behavior that we are willing to tolerate.

The same seventeenth- and eighteenth-century world that used the idea of privacy to manage religion also employed the idea of private activity to make sense of the increasingly important role of markets in society. Aristotle thought of economic activity as part of the government of the household, which of course was seen as a private (and therefore not particularly important) realm as opposed to the public space of the agora, were the important aspects of life occurred.

By the time the Wars of Religion were winding down in the mid-seventeenth-century, however, commerce had become politically important. At the same time, the relocation of religion (and with it the ultimate questions of the good life) to the private sphere had rendered what went on there of far greater importance than it had been for Aristotle and his successors. By the eighteenth-century we had a whole new field – economics – that was focused on thinking about commercial life as a distinct sphere, and with the rise of nineteenth-century liberalism, this commercial activity – like religion – was conceptualized as a private matter, one where the collective decision-making of politics was to hold limited sway.

Many of the current skirmishes over law and religion are less about the relationship of God and Caesar than they are about the law regulating the relationship between God and Mammon. Cases like Hobby Lobby or the debates over anti-discrimination law and state Read more

Posted on by Nathan Oman

Indiana and Doux Commerce

Amidst the often disappointingly vacuous cacophony over Indiana’s recently passed RFRA legislation, Jacob Levy, a political philosopher at McGill, raised the fascinating question of how we ought to think about the relationship between religious freedom and commerce.

Levy raises two sets of concerns with Indiana’s law, one of which is largely illusory and one of which merits serious thought. The illusory concern is that the Indiana RFRA is a radical innovation that by applying the compelling state interest test to private causes of action threatens to undermine the basic legal infrastructure – property, contract, and tort – of the market.

It’s important to remember that we have decades of experience applying some version of the compelling state interest test to religious claims. We have the nearly three decades from Sherbert to Smith as a matter of constitutional law, and then the more than two decades from the passage of RFRA to the present as a matter of federal statutory law. Beginning in the mid-1990s some states began passing their own RFRAs, and during this entire period numerous states applied some version of the compelling state interest test as a matter of state constitutional law. If antinomian chaos were going to break forth one would think that after a half century it already would have happened.

In terms of concrete conflicts between RFRAs and basic private law, it seems to me that the most dangerous ones would be cases involving bodily harm or the invasion or destruction of property. I think that in cases involving bodily integrity, courts would have no problem saying that the state had a compelling government interest in protecting bodily integrity and in providing recourse to those suffering bodily injury. I think that for most property cases, we can dispose of them by saying that property law places no substantial burden on religious exercise. Saying that you have to build your sukkah on in your yard rather than my yard is not a substantial burden. There might be issues if we have a property owner who for some reason owned religiously significant land, as has been the case with some Native American claims against the federal government. Depending on the facts, I am not convinced that chaos would result if we granted an exemption from certain rules of property law. To give an analogy, lots of private property owners have land that contains graves. In many states there is a common law doctrine granting descendants an easement on the land to visit the graves. The market has not been threatened.

His rather fanciful legal concerns aside, however, Levy raises a deeper issue, one that deserve far more attention that it has received. His concern is with the way in which allowing religious believers to claim exemptions from otherwise applicable laws might inject the question of religious identity into commerce.  He quotes Voltaire’s famous statement of the doux commerce argument:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

Voltaire’s insight – one he shared with thinkers such as Montesquieu and Adam Smith – was that markets are more than simply a mechanism for organizing economic production. They are also moral and political institutions that structure relationships and inculcate certain moral habits. For the eighteenth-century apologists for commerce, the effect of markets in this area was largely beneficent. They allowed those of very differing religious convictions to peacefully cooperate and tended to inculcate habits of tolerance and, if not respect, at least peaceful co-existence.

Levy suggests that by allowing religious people to claim exemptions from the demands of contract or property, RFRA statutes might undermine this order. As explained above, I think that this is the wrong thing to worry about. The scope of anti-discrimination laws, however, does raise this issue. As near as I can tell, Levy himself favors rather narrow antidiscrimination laws on largely libertarian grounds. What happens, however, when we apply the doux commerce argument itself to the question of antidiscrimination laws?

Normally we think of contract as structuring relationships in the market. Antidiscrimination laws, however, deprive certain market participants of the ability to avoid contracting. This raises two questions. First, does such forced contracting undermine doux commerce by replacing contractual norms with non-contractual equality norms, or does it enhance doux commerce by requiring people to trade across tribal and religious boundaries? Second, when thinking about religion in our society, how desirable is the Royal Exchange of Voltaire? On one hand it tends to promote tolerance and peacefully mediate religious pluralism. At the end of the day, however, Voltaire was no great friend of religious faith and for him one of the great attractions of commerce was the corrosive effect he hoped that it would have on religious communities, which he wished to see submerged in the universal, secular identity of citizenship.

Posted on by Marc O. DeGirolami

On the State RFRA Contretemps: Doug Laycock (and Me)

Two little items to report. First, Professor Doug Laycock has a very good piece at the Religion and Politics Blog.

Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn’t get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug’s piece was apt:

For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.

Posted on by Mark Movsesian

Ironies in Indiana

Some readers have asked me what I think about the Indiana RFRA controversy, as an academic who studies law and religion. To my mind, opponents of the law have succeeded in creating a false sense of crisis about the evil this allegedly unprecedented law would unleash in America. In this, they have been greatly assisted by the media’s framing of the issue and and by the support of corporate titans like Apple and Walmart, which have decided to intervene in the dispute–incidentally proving, as Justice Alito argued in Hobby Lobby, that for-profit corporations sometimes do express goals other than merely making money.

In addition, it seems to me that the controversy contains three very significant ironies, two for the law’s opponents and one for its supporters.

First, notwithstanding opponents’ efforts to portray the Indiana statute as an innovation, the balancing test it establishes is nothing new. The test, which holds that government cannot impose substantial burdens on citizens’ religious exercise without showing a compelling need to do so, and without choosing the least-restrictive means for doing so, was American constitutional law for decades, until the Supreme Court jettisoned it for most purposes in 1990. It is the test embodied in the federal version of RFRA, enacted without opposition more than 20 years ago; in the many state versions of RFRA; and in the constitutional law of many other states. Indeed, according to scholars Cole Durham and Brett Scharffs, the compelling-interest test is the majority rule in the United States today. It’s true that there are a couple of differences in the Indiana law, but those differences are pretty minor, and anyway the debate has not focused on them.

Even more: something like the compelling-interest test is the rule in liberal societies around the world. The European Convention on Human Rights, for example, provides that a member state can interfere with citizens’ exercise of religion only where the state shows that the interference is “necessary” to achieve an important interest. Many countries have similar balancing tests, including Canada, Israel, and South Africa. From a global perspective, there is nothing unusual about the Indiana statute.

Second, the Indiana statute leaves ultimate determinations to the courts. It does not, as some of its opponents  misleadingly claim, legalize discrimination against gays and lesbians. In the unlikely event that an Indiana business refused, in violation of any applicable anti-discrimination laws, to serve gay people, and claimed a religious justification for doing so (how many such businesses are there, anyway?), the case would proceed to litigation, in which a court would determine (1) whether requiring a business to serve gay customers is, genuinely,  a substantial burden on its religious exercise; (2) if so, whether the state’s interest in preventing discrimination against gays is compelling; and (3) whether there is some way other than requiring the business to serve gay customers that could advance that interest equally as well. I wouldn’t bet on the business’s chances in such a lawsuit. Given the great success supporters of gay rights have had in American courts in recent years, it is ironic that they would lose faith in the courts now.

And this leads to the third irony, one for the statute’s supporters. Some supporters evidently are confident the Indiana statute would allow a business to refuse, on religious grounds, to participate in same-sex wedding ceremonies—caterers and photographers, for example.  (This is not the same thing as refusing generally to serve gays and lesbians, incidentally, and it is not helpful to conflate the two situations). That’s why they are fighting so hard for the law. But it is not at all clear they are correct. Whatever one thinks about the merits of a religious exemption in these circumstances, it is uncertain that a court would actually rule in favor of the business. Maybe the business would prevail in a RFRA lawsuit, maybe not.

On the basis of distortions, mistakes, and uncertain predictions, we seem ready to abandon a foundational principle that exists, not only in American law, but in legal systems across the world. The New York Times refers, without irony, to “so-called religious freedom laws.” On Morning Joe this week, Mika Brzezinski suggested that stopping the Indiana statute would not be enough; it’s time, she hinted, to revisit the federal RFRA itself.  We seem ready, in other words, to take courts out of the business of protecting religious minorities. Does that seem a good idea?

Posted on by Marc O. DeGirolami

“Weaponizing”

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter’s recent post: “What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.”

One might have thought, even relatively recently, that religious freedom was a “civil right.” But no longer: it is now said to be the enemy of “civil rights.” And I suppose that what is “weaponized” will depend on one’s perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state’s interest in vindicating specific sorts of dignitarian harms, that have been “weaponized.” But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here’s how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I’ll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.