April 11, 2014

Law Professors' Feb. Letter on the Arizona RFRA Amendments

The furor of the last couple months concerning various religious-freedom-related bills (wise ones and unwise ones) has died down a bit. But questions about the meaning and effects of state reiigious freedom restoration acts (RFRAs) will recur. Thus it seems worthwhile, for future reference, to post here the February 25 letter to Arizona Gov. Jan Brewer from 11 religious-liberty scholars--including three MOJers--clarifying the nature of the proposed amendments to the Arizona state RFRA in the face of a pubilc debate that increasingly (and wrongly) has threatened to tar RFRAs in general as "anti-gay" bills.

Posted by Thomas Berg on April 11, 2014 at 06:46 PM in Berg, Thomas | Permalink

March 25, 2014

The Scholars' Mississippi Letter: RFRAs in General Are Now Bad

Several days ago, Michael posted the letter from several legal academics opposing the proposed Mississippi RFRA (religious freedom restoration act; the latest proposed text, which has now been tabled, is here). I've meant to write a responsive post but have been slow in doing so. The opposition to the Mississippi bill grows out of the intense reaction to the earlier Kansas and Arizona bills. Here is another article likewise lumping together Mississippi and Kansas (because after all, these bills all come from red states and from legislators unsympathetic to gays and lesbians: "Can anything good come from Mississippi?"). But the opposition to Mississippi's bill crosses a new threshold. It essentially says that it's bad, period, to enact a RFRA, a general rule that substantial burdens on religious freedom must have a strong justification.

As Paul Horwitz notes today, the increasing per se opposition to RFRAs reflects a substantial breakdown of consensus among Religion Clause scholars. My claim is that the opposition to Mississippi's proposal is counterproductive even from the progressive premises that motivate many of the opponents.

The scholars' letter primarily argues that the Mississippi RFRA would send a message that commercial businesses might be exempt from anti-discrimination laws. As in Kansas and Arizona, the focus is on exemptions that would undermine civil rights laws protecting gays and lesbians. But here's the problem: even assuming that RFRAs have any such effect (which is itself highly doubtful), MIssissippi does not have gay-rights laws for a RFRA to undermine (and likely won't in the near future). There is no state law against sexual-orientation discrimination. There are no local laws: as the letter notes, three cities have passed resolutions condemning discrimination, but these are non-binding. The only hypothetical the letter can conjure up involving an actual Mississippi law is wildly implausible. The state "conscience clause" that protects doctors from having to perform procedures that violate their conscience also says that they cannot refuse to treat a patient because of his/her sexual orientation; so the letter hypothesizes that the state RFRA might allow a doctor to simply refuse on religious grounds to treat a gay patient who has AIDS. The letter gives no evidence (because, I expect, there is none) that any doctor has ever made such an objection, let alone successfully. In short: whatever the motivations of the bill's proponents (I do not vouch for their attitude towards gays and lesbians), the Mississippi RFRA would make no difference in the area of gay rights and religious objections.

For critics of the bill, that's one of its many problems. They say that to pass religious-freedom protection, even in the form of a general statute, when objectors to gay rights don't need it is just a mean-spirited slap at gays and lesbians. But if we consider it a little longer, it seems to me, the conclusion should be the opposite.

Whatever the authors' subjective intentions, the far more likely effect of a Mississippi RFRA would be to protect religious minorities, many of them non-Christians, against laws passed in a state whose officials have frequently shown indifference or hostility to minorities. These cases ought to matter far more to liberals than the completely hypothetical conflicts with nonexistent civil-rights laws. RFRAs make a difference because they replace the narrow free-exercise rule of Employment Division v. Smith with a standard that requires the government to offer a strong reason for imposing substantial restrictions on religious practice. In a listserve post, Professor Chris Lund, probably the leading expert on state RFRAs, has cataloged a number of cases in which they have protected religious minorities: for example, "the Native American student who got the right to wear his hair long in A.A. v. Needville Indep. School Dist., 611 F.3d 248 (5th Cir. 2010), the Santeria folks who got to continue their religious rituals sacrificing animals in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), the Jehovah’s Witness who got a bloodless liver transplant that was necessary to keep her alive in Stinemetz v. KHPA, 252 P.3d 141 (Kan. App. 2011)."

There are other cases that were not decided directly under a state RFRA but whose facts could easily recur in Mississippi and in which the state RFRA would likely be crucial to protecting either a religious minority or a religious practice with which progressives should sympathize. In next-door Alabama, the state's draconian law against assisting illegal immigrants was challenged by Catholic, Protestant and other social-service ministries; they had a far better chance of prevailing under Alabama's RFRA than under the Smith rule. The Newark, NJ police department enforced a no-beard rule against a devout Muslim officer for doubtful reasons; the same situation could easily happen in Mississippi, and if so the officer would have a much stronger argument under a state RFRA than under Smith. When a deceased Hmong man was autopsied by a Rhode Island coroner, the family was deeply distressed because they believed the autopsy imprisoned their loved one's soul: but a district judge, after first ruling for the family, then reversed himself under Smith without regard to whether the coroner had a good reason for the autopsy. I've no doubt that if and when Hmongs settle in Mississippi, they could face the same kind of unnecessary imposition from indifference or hostility.

We should judge a proposed law by what its text would do in the legal context, not by the motivations (or  perceived motivations) of its sponsors. The actual effect of a newly enacted RFRA in a state like Mississippi, it seems to me, would be quite different from the picture that was painted.

I want to be clear about the distinctions I see among the recent "religious liberty" bills, because I think the critics have now blown past important differences as they oppose RFRAs wholesale. In my view, the Kansas bill that focused on objections to gay marriage was terrible: it gave no weight to the interests of same-sex couples and was indeed a symbolic slap at them because Kansas has no sexual-orientation nondiscrimination laws from which objectors even arguably needed protection. Unlike a general RFRA statute, the Kansas bill covered only the specific situation and thus provided no religious-freedom benefits in any other situation. I can also understand, while not necessarily agreeing with, people who attacked the amendments to Arizona's state RFRA. Those amendments took a statute  already protecting various religious minorities and added language expllicitly covering claims by for-profit businesses and in claims lawsuits by private parties. If you oppose all exemptions for for-profit businesses, then it made sense to oppose the amendments.

But with the Mississippi bill, we saw opposition to the enactment of a state RFRA in the first place, a statute that will change or clarify the law to protect a wide range of potentially sympathetic religious-freedom claims like those above. And the opposition to the bill rests on hypothetical threats to nonexistent state and local civil-rights laws. I believe that many of the signers of the letter opposing this RFRA value religious freedom in general. But when such utter speculation about nonexistent gay-rights disputes overrides the benefits of protection for minority faiths in many other cases, the result is to dismiss the free exercise of those faiths as quite unimportant.

(All this is water under the bridge for now: the Mississippi proposal is tabled, and politically this is an impossibly toxic time to propose a state RFRA. But I hope the time will come when we can again consider RFRAs on their real merits.)

Posted by Thomas Berg on March 25, 2014 at 02:41 PM in Berg, Thomas | Permalink

World Vision Will Hire Gay Christians in Same-Sex Marriages

The U.S. branch of World Vision, the major evangelical relief agency, is changing its policy and opening itself to hiring professing Christians who are in legally recognized same-sex marriages. This almost certainly presages future moves by other traditionally oriented organizations, as well as the arguments that will increasingly ground those moves. From Christianity Today:

Given that more churches and states are now permitting same-sex marriages (including World Vision's home state of Washington), the issue will join divorce/remarriage, baptism, and female pastors among the theological issues that the massive relief and development organization sits out on the sidelines....

"Changing the employee conduct policy to allow someone in a same-sex marriage who is a professed believer in Jesus Christ to work for us makes our policy more consistent with our practice on other divisive issues," [president Richard Stearns] said. "It also allows us to treat all of our employees the same way: abstinence outside of marriage, and fidelity within marriage."

Posted by Thomas Berg on March 25, 2014 at 01:15 PM in Berg, Thomas | Permalink

March 17, 2014

Paulsen on "Lady Edith and Abortion Rights"

Here's a strong and engaging article, from Public Discourse, by my (always strong and engaging) colleague Mike Paulsen, on Downton Abbey's Lady Edith and her unplanned pregnancy. (I'll say no more, to avoid spoilers--and Mike gives fair warning too at the beginning of the piece.)

Posted by Thomas Berg on March 17, 2014 at 11:36 AM in Berg, Thomas | Permalink

March 12, 2014

"Trying Like Hell to be a Unitarian" (i.e. Smart and Good)

A friend sent me this quote from Pastrix, a book by Nadia Bolz-Weber, an incisive and funny Lutheran pastor who blogs at "Sarcastic Lutheran," has lots of tattoos and swears a lot, and really gets the idea of grace (see the book at p. 45):

While in California, I spent several months trying like hell to be a Unitarian. Quakerism didn't work for me, Wicca was great, but I always felt like I was just visiting. So I hoped Unitarianism would be just right. Unitarians are such smart, good people. They seemed so hopeful. They vote Democrat and recycle and love women and they let you believe anything you want to, and I wanted to be one of them badly. But I couldn't pull it off. Four years of sobriety hadn't come to me as a result of hopefulness and positive thinking. It was grace. Unitarians just don't talk much about our need for God's grace. They have a higher opinion of human beings than I have ever felt comfortable claiming, as someone who both reads the paper and knows the condition of my own heart. Having had the experience of getting sober and feeling like God interrupted my bullshit life, I couldn't be comforted by my own divinity or awesomeness, although I'd love it if I could. In the end, as much as I desperately wanted to be Unitarian, I couldn't because what I needed was a specific divine source of reconciliation and wholeness, a source that is connected to me in love, but does not come from inside of me.

Unitarians are the example here, but the streak runs through me and through an awful lot of us: the streak of maintaining a very high opinion of ourselves and of the capabilities of humans in general. As a result, when other people fall short of those expectations, boy, are they in for a verbal or digital thrashing. (Those people who slam the other side without showing any sympathy or grace, I sure do despise them.... Oops, sorry.)

Posted by Thomas Berg on March 12, 2014 at 09:27 PM in Berg, Thomas | Permalink

Stupak Op-Ed and Brief

Thanks, Rick, for posting about Bart Stupak's USA Today op-ed. (You're always faster than I am!)  As many readers know, Rep. Stupak joined with Democrats for Life of America in an amicus brief in the HHS cases, on which I was counsel of record. The brief argues that there is a distinctively strong tradition of protecting conscientious objections to abortion, one that should inform the interpretation of the Religious Freedom Restoration Act. The op-ed condenses the arguments of the brief.  It also expresses very well Rep. Stupak's belief that to the extent the HHS mandate covers Ella, IUDs, etc., the government has failed to fulfill the spirit of its commitment that the Affordable Care Act would not pressure the consciences of objectors to abortion.

Posted by Thomas Berg on March 12, 2014 at 02:44 PM in Berg, Thomas | Permalink

March 05, 2014

The actual but limited importance of judicial dispositions

Tom's comparison of judicial pragmatism and judicial restraint with Niehbuhrian Christian realism shows how it can help to understand each of these as appropriate dispositions when engaging in various forms of practical reasoning. Tom contends that Niebuhrian realism disposes religious and political activists "to combine vigorous advocacy with deep humility." He observes that good dispositions are virtues, and that such virtues "may be more powerful and determinative than the precise logic of analysis." And he concludes by asking about the value of judicial pragmatism and judicial restraint as providing an appropriate disposition toward the activity of judging.

Tom's comments and question helpfully bring to the surface an issue that Marc and I do not resolve in the paper. We speak of Posner and Wilkinson as advocating for particular judicial dispositions as features of judicial excellence. This terminology leads toward understanding the qualities of good judging in virtue-based terms. But we do not explicitly endorse a virtue-based account as against some other type of account. At other times in the paper, we speak in terms of judicial office or judicial role or judicial duty. We do this less to contrast a virtue approach with a deontological approach than to capture an aspect of judging that both pragmatism and restraint rub up against in various ways--the obligation of law. If the law requires something, the judge should neither be pragmatic nor restrained to the exclusion of the requirements of the law. Neither Posner nor Wilkinson claims otherwise. But too strong an emphasis on sensibility or disposition tends in that direction. One can see this in various ways in the cases that we describe in the second part of our paper. 

While an emphasis on appropriate judicial dispositions toward constitutional adjudication stands in some tension with an emphasis on the right way to figure out what the law requires, it is nonetheless helpful to recognize the two as distinct. This enables analysts to discuss the contribution and the limits of each type of guide for judges. And when figuring out the right dispositions for judges in constitutional adjudication, it matters that the particular form of practical reasoning at issue is judicial legal reasoning. Appropriate dispositions toward the kind of practical reasoning engaged in by political and religious activists are not the same as appropriate dispositions toward judicial legal reasoning in constitutional cases.

Posted by Kevin C. Walsh on March 5, 2014 at 09:35 PM in Berg, Thomas, DeGirolami, Marc, Walsh, Kevin | Permalink

March 04, 2014

Pragmatism, Dispositions, and Theory: Taking Off from Kevin and Marc

Marc's and Kevin's postings on pragmatism and judicial restraint as dispositions toward judging, rather than directly usable theories, remind me of a parallel argument in Christian social ethics (there probably is one in secular ethics as well). In the early 1980s, Catholic theologian Dennis McCann (DePaul) wrote a book called Christian Realism and Liberation Theology: Practical Theologies in Creative Conflict. In it McCann was appreciative but also critical of the long-dominant (though declining) tradition of Christian realism as exemplified by Reinhold Niebuhr and those following--a tradition that, overlapping with pragmatism, emphasized the complexity and irony involved in many moral/social disputes in a fallen world and the need in many cases to balance conflicting values. McCann concluded that Niebuhrian realism failed to provide more than "disposition" toward social questions. I've always thought that one could draw more from the Christian realist approach than McCann said; but in previous work I've admitted that perhaps the main value of the approach may be to describe and defend a disposition. However, dispositions are important. Good dispositions are virtues, and virtues--the qualities with which we approach intellectual and moral challenges--may be more powerful and determinative than the precise logic of analysis. In an earlier, 1995 law review article on "church-state relations and [Niebuhr's] social ethics," I went through this:

[McCann] argues that after Niebuhr rejected Marxism, he failed to articulate a new “critical social theory” that would guide the choices between conflicting political ideologies; instead, he constructed “not much more than a 'dispositional ethic’ for politicians and social activists.” In other words, Niebuhr beautifully taught activists how to combine vigorous advocacy with deep humility, but left little guidance (other than context-specific judgments) on what actual goals they should seek....

     [But] the “dispositional ethic” that Niebuhr sketched for religious and political activists [is] important. Niebuhr vividly taught how to combine vigorous advocacy with deep humility. Achieving that balance is not an easy task in law and politics, but it is one that is crucial. It is especially crucial if, as I have argued, one cannot sidestep the dangers of religious zeal in politics by trying to separate religion strictly from public life. We must look to religious views themselves, as well as secular views, to find reasons to be humble and tolerant even as we engage in political conflict. Humility inculcates the willingness to reach proximate solutions, because we realize the potential for truth in our opponents' perspective and the potential for partiality and complacency in our own. And even when vigor demands that we not compromise, humility inculcates a “sense of pity and forgiveness for those who contend against our truth and oppose our action.”

The combination of vigor and humility is too often lacking in debate concerning the issues of the current “culture wars,” including the issue of how to relate religion and politics. On one hand, citizens who are wary of the certainties proclaimed by activists too often despair of reaching any solutions to intractable social problems. On the other hand, activists on both sides of the culture wars too often display little humility. Both sides need internal voices to do for them what Niebuhr did for his own community of political and religious liberals: to reconstruct their basic commitments while working to purge them of false certainties and utopian illusions.

I think that the recent intensification of the culture wars has shown again the relevance of these points.

So back to Marc and Kevin. Is there an analogous line of thought for their project on judging?  I.e. that pragmatism and judicial restraint cannot fill in for substantive analysis of the purposes of the Constitution (or more broadly, of our system of constitutional democracy, or less broadly, of a particular constitutional clause or doctrine). But nevertheless pragmatism and judicial restraint--to the extent that they are correct accounts of judicial virtues--can still be vital and central.

Posted by Thomas Berg on March 4, 2014 at 03:47 PM in Berg, Thomas | Permalink

February 27, 2014

"Love and Intellectual Property" (from Pepperdine Conference)

Pepperdine Law School put on a wonderful conference a few weeks ago on "Love and the Law" (i.e. Christian love or agape).  There were many terrific presentations, including from MOJers Mike Moreland, Michael Scaperlanda, Lucia Silecchia, and Rob Vischer (and Patrick Brennan would have been there too but for the terrible weather in the East).  My own presentation was on "Love and Intellectual Property" (here is a very slightly expanded version of the text of the short remarks; it should also appear soon on the webpage of conference papers).  I briefly explored the relation between creativity as a gift, gratitude for the gift, and appropriate limits on intellectual property rights in the creation.  Here's a one-paragraph taste:

So the first thing Christian love might add is an additional, and distinctive, motivation to create and share. Intellectual creation may reflect eros—pursuing the beautiful or true—but it is also agape, sharing a gift. But if gift and gratitude issue in love, this inspires one not simply to create—which might still be consistent with restricting access solely to maximize profit. Love should also inspire the creator to share in ways such that all can benefit. In short, love has the potential to unite the motivation for creation and an obligation to benefit others through it.

Posted by Thomas Berg on February 27, 2014 at 01:58 AM in Berg, Thomas | Permalink

January 28, 2014

Why RFRA Applies to For-Profit Corporations: the Christian Legal Society Amicus Brief

The Christian Legal Society has filed an amicus brief in Hobby Lobby/Conestoga, written by Prof. Doug Laycock, that eviscerates the government's argument that the Religious Freedom Amendment (RFRA) does not apply to for-profit corporations.  In surgical detail (as "eviscerate" connotes!), the brief shows that during the 1999-2000 debate over reenacting RFRA as applied to the states (after the Court had struck down that application), leaders of both sides took RFRA's plain, public meaning to be that it applied universally to all claims of substantial burdens on religious exercise, with no exclusion of claims by for-profit corporations.  Liberal congressmen and civil-rights groups had crystallized their opposition to corporate religious-freedom claims against civil-rights laws, and so they wanted an amendment that would exclude such claims.  The stalemate over this issue prevented RFRA's reenactment as applied to state laws-- but the statute has always remained applicable to federal laws and regulations.  (The legislation that emerged from the 1999-2000 debate was the Religious Land Use and Institutionalized Persons Act, RLUIPA, which covers only zoning/landmarking cases and claims by state prisoners and other institutionalized persons.  UPDATE: And the 1999-2000 debate led not only to RLUIPA, but to minor changes in RFRA' text that, among other things, stated that the statute covers "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."  Thus, the 1999-2000 debate amended RFRA too and reinforced the universal reach of the term "exercise of religion.")

The brief explains cogently why this is powerful evidence (not questionable "post-enactment legislative history") confirming the plain public meaning of RFRA' text, which is that the "persons" who may claim rights of religious exercise under it include for-profit corporations--consistent with the general definition of "person" in the U.S. Code set forth by the Dictionary Act.

The CLS brief also overlaps with the Democrats for Life brief I just posted about, in arguing that "the tradition of protecting conscientious objectors Is especially broad and deep with respect to taking human life."

Posted by Thomas Berg on January 28, 2014 at 05:43 PM in Berg, Thomas | Permalink