Around the Web

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

Around the Web

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

Around the Web

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

Around the Web

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

Around the Web

Some important law-and-religion stories from around the web:

St. John’s Colloquium in Law and Religion Hosts Robin Fretwell Wilson

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On Tuesday, February 16, St. John’s Law and Religion Colloquium welcomed Professor Robin Fretwell Wilson. Professor Wilson, who was instrumental in bringing about the so-called “Utah compromise,” gave a very interesting talk about proposals from various perspectives to privatize marriage. The paper, “Getting Government out of marriage” Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage,” argued that that these proposals are unwise as a policy matter for a variety of reasons.

Prothero, “Why Liberals Win the Culture Wars (Even When They Lose Elections)”

In January, HarperCollins Publishers will release “Why Liberals Win the Culture Wars (Even When They Lose Elections): The Battles That Define America from Jefferson’s Heresies to Gay Marriage,” by Stephen Prothero (Boston University). The publisher’s description follows: 

In this timely, carefully reasoned social history of the United States, the New York Times bestselling author of Religious Literacy and God Is Not One places today’s heated culture wars within the context of a centuries-long struggle of right versus left and religious versus secular to reveal how, ultimately, liberals always win.

Though they may seem to be dividing the country irreparably, today’s heated cultural and political battles between right and left, Progressives and Tea Party, religious and secular are far from unprecedented. In this engaging and important work, Stephen Prothero reframes the current debate, viewing it as the latest in a number of flashpoints that have shaped our national identity. Prothero takes us on a lively tour through time, bringing into focus the election of 1800, which pitted Calvinists and Federalists against Jeffersonians and “infidels;” the Protestants’ campaign against Catholics in the mid-nineteenth century; the anti-Mormon crusade of the Victorian era; the fundamentalist-modernist debates of the 1920s; the culture wars of the 1980s and 1990s; and the current crusade against Islam.

As Prothero makes clear, our culture wars have always been religious wars, progressing through the same stages of conservative reaction to liberal victory that eventually benefit all Americans. Drawing on his impressive depth of knowledge and detailed research, he explains how competing religious beliefs have continually molded our political, economic, and sociological discourse and reveals how the conflicts which separate us today, like those that came before, are actually the byproduct of our struggle to come to terms with inclusiveness and ideals of “Americanness.” To explore these battles, he reminds us, is to look into the soul of America—and perhaps find essential answers to the questions that beset us.

In the mail: Witte’s “Western Case for Monogamy Over Polygamy”

I was pleased to receive Professor John Witte’s new volume, released earlier this year, The Western Case for Monogamy Over PolygamyWitte, Monogamy and Polygamy, in which, with at least half an eye cocked at the coming legal contests over polygamous marriage, John explores the following questions:

What is the Western tradition’s case for monogamy over polygamy, and is that case still convincing in a post-modern and globalized world? Are there sufficiently compelling reasons to relax Western laws against polygamy, and is this a desirable policy given the global trends away from polygamy and given the social, economic, and psychological conditions that often attend its practice? Or, are there sufficiently compelling reasons, reconstructed in part from the tradition, to maintain and even strengthen these anti-polygamy measures, in part as an effort to hasten the global demise of this practice?

I’ve only had a chance to glance at the book but from that quick scan, it appears that the primary justifications advanced in the book as a historical matter for monogamy over polygamy relate to “joint parental investment in children” and ensuring “that men and women are treated with equal dignity and respect within the domestic sphere,” the latter logic of which, the book claims, “applies to dyadic same-sex couples, who have gained increasing rights in the West in recent years, including the right to marry and to parent in some places.”

The book is immensely and richly detailed and comprehensive, with chapters including “From Polygamy to Monogamy in Judaism,” “The Case for Monogamy Over Polygamy in the Church Fathers,” “Polygamy in the Laws of State and Church in the First Millennium,” “Polygamous Experiments in Early Protestantism,” and “The Liberal Enlightenment Case Against Polygamy.”

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

very interesting comment authored jointly by Rick Garnett, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act. A bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court’s recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action….

Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation….

We understand that new versions will address many or all of these issues. We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.

One thought that has occurred to me on the issue of “tax exemption” of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University’s tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within “civil society” that should in general not be touched by the government’s taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of “exemption” when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government’s power to tax.

[Update: I’ve amended some things in the post for clarity.]

Greve on “The Bob Jones Rule”

I was going to post on one particular exchange between Solicitor General Verrilli and Justice Alito in yesterday’s oral argument in the same-sex marriage case, but Professor Michael Greve’s post is a better read than what I can come up with. A bit:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

Solicitor General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that.

That answer is about as straightforward and committal as you’ll see from an experienced lawyer. It’s curious because the Solicitor General had excellent reasons to deny the point and to deflect the question. His task was to assuage worries about what the Court is being asked to do here and to script the justices’ forthcoming press release (formally known as “the opinion for the Court”): that’s not what this means. And he had a million ways of making reassuring noises. It’s not some complicated legal case, for Pete’s sake: all Mr. Verrilli needed was to argle-bargle for the remaining five minutes of friendly colloquy about First Amendment values, competing dignities, the arc of history, and the meaning of life. In short, Verrilli made the concession not because he had to; he volunteered it. Why?

Because if the tax exemption jazz becomes “an issue,” it’s decided the minute gay marriage becomes the constitutional baseline. Because everyone knows that. Because the LBGT folks already have those complaints and briefs in their drawers, to be filed (almost “certainly”) on July 1.  And because DoJ and the IRS and OCR, in their last remaining eighteen months in office, are in a hurry to roll over to their constituencies and to hammer the hold-outs, in meticulous observance of the law. A hallmark of this administration. Or maybe they’ll hand out waivers.

I don’t deny that” says “dare me. It’s not going to hurt me in this case, and I’ll plant a flag for the next cases.” Mr. Verrilli could have coasted; instead, he waited for his opening to push further. A heck of a lawyer, at his considerable best.

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