Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, April 17, 2018

ACS Webinar on Travel-Ban Case

On Thursday, April 19, I'll be one of the speakers on a webinar sponsored by the American Constitution Society, "The Travel Ban at the Supreme Court: A Briefing on Trump v. Hawaii." (Information and registration, for a call-in password, are here.) I'll speak on the Establishment Clause issues--more broadly, the Religion Clause issues--raised by the travel ban's roots in anti-Muslim statements and promises by President Trump. (Oral argument in the case is next Wednesday, April 25.)

I ultimately support the religious-discrimination challenge to the third travel ban. (As I'd done before, I joined an amicus brief of constitutional scholars arguing that the ban is rooted in animus toward one religious faith, prohibited by the free exercise, equal protection, and non-establishment provisions. Our own Michael Perry also joined the brief.) But there are several complications in this analysis, and I'll discuss some of them and explain why I support the challenge.

The webinar runs from 3 to 4 p.m. eastern time. Other speakers are Doug Chin, Hawaii's former Lt. Gov., and Shoba Sivaprasad Wadhia, founder and director of the Center for Immigrants' Rights Clinic at Penn State Law.

April 17, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, March 20, 2018

"Religious Freedom and the Common Good": Symposium at St. Thomas Law, March 23

Reposting this. Twin Cities and upper-Midwest readers, please come join us!

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together two groups--(1) social scientists who study the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizers are the Baylor University Institute for Study of Religion (ISR); St. Thomas's Murphy Institute for Catholic Thought, Law, and Public Policy (co-directed by our own Lisa Schiltz); and the Religious Freedom Institute.

Here is the conference description, with times and titles of various presentations. A little more about the speakers:

  • Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
  • Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
  • Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
  • Jackie Rivers, an expert on the social role and contributions of African-American churches
  • Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
  • Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
  • Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
  • Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
  • Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
  • Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
  • Yours truly

A description in text: 

     Challenges to religious freedom have become more prominent and intense in recent years, both in the US and abroad. The conflicts involve both individuals and nonprofit religious organizations, of varying faiths, and laws on matters from nondiscrimination to healthcare to national security. Arguments over these questions typically treat religious freedom as a matter of personal individual autonomy. But religious freedom may have another important dimension: the common good. Indeed, in an era of increasing skepticism toward many religious-freedom claims, the defense of religious freedom may increasingly rely on showing that it preserves space for religious groups to benefit individuals and society.

     Social scientists have done considerable research on the asserted contributions of religion and religious organizations for individual believers, for recipients of social services, and for society. But what are these contributions, and how well established are they? Moreover, what relationship do they have to religious freedom in the American tradition? Can religious freedom be justified in part based on its contributions to the common good, and how would such arguments affect the scope of religious freedom?
 
     To address these questions, this conference brings leading social scientists together with a variety of legal scholars, advocates, and policy experts. Among the topics will be the contributions of religious organizations to social services, the founders' views of religion's societal effects, the benefits and risks of religious freedom for African-Americans, the role of religious freedom in countering terrorism, a view of religious-freedom issues from within government service, and the causes and consequences of religious-freedom restrictions in various nations.
 
     Conference papers will be published in the University of St. Thomas Law Journal and, in shorter form, in other venues.

March 20, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, February 21, 2018

"Religious Freedom and the Common Good" Symposium: March 23 at St. Thomas Law

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together (1) social scientists who measure the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizer is the Baylor University Institute for Study of Religion (ISR).

So far just a Facebook link, so I'll post at a bit of length. Speakers include:

  • Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
  • Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
  • Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
  • Jackie Rivers, an expert on the social role and contributions of African-American churches
  • Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
  • Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
  • Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
  • Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
  • Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
  • Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
  • Yours truly

Here's a fuller description: 

Continue reading

February 21, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

"The Question of Religious Freedom" (Loyola)

For readers in and about Chicago: The theology department at Loyola U. is sponsoring a program on "The Question of Religious Freedom," on Monday, March 12 (evening keynote), and Tuesday, March 13 (day-long) at the downtown campus. Speakers include Barry Hudock, author of Struggle, Condemnation, Vindication: John Courtney Murray’s Journey toward Vatican II; Robin Lovin, one of the nation's most distinguished mainline Protestant social ethicists; and three legal scholars, Kathleen Brady, Leslie Griffin, and yours truly. 

From the description:

In recent times, religious freedom has reemerged as a key and controversial issue within the United States and around the world.  With a desire to contribute to this essential conversation, we have invited prominent scholars to discuss and analyze religious freedom as it relates to issues of social polarization, peaceful coexistence, non-discrimination and the common good. We also will look back to the contribution of John Courtney Murray, S.J. to Dignitatis Humanae, the groundbreaking document on Religious Freedom issued in [1965] by the Second Vatican Council. 

I'm looking forward to the program: an examination of Murray's legacy on this issue, a wide-ranging set of current perspectives, an important set of themes ("social polarization" et al. above), and ample time allocated for the speakers and audience to air and explore those themes thoroughly.

February 21, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Tuesday, January 16, 2018

Religious Freedom Day, and the Virginia Statute

Today is Religious Freedom Day, and President Trump issued this proclamation:

      Faith is embedded in the history, spirit, and soul of our Nation.  On Religious Freedom Day, we celebrate the many faiths that make up our country, and we commemorate the 232nd anniversary of the passing of a State law that has shaped and secured our cherished legacy of religious liberty.

      Our forefathers, seeking refuge from religious persecution, believed in the eternal truth that freedom is not a gift from the government, but a sacred right from Almighty God.  On the coattails of the American Revolution, on January 16, 1786, the Virginia General Assembly passed the Virginia Statute of Religious Freedom.  This seminal bill, penned by Thomas Jefferson, states that, “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”  Five years later, these principles served as the inspiration for the First Amendment, which affirms our right to choose and exercise faith without government coercion or reprisal.

Is the proclamation accurate? The relationship between the Virginia statute and the First Amendment is complicated. To say that the statute "served as the inspiration" for the Amendment is so overstated that it's wrong. (It tracks the Supreme Court's overbroad assertions in Everson v. Board of Education.) As Steve Smith, Kurt Lash, and others have emphasized, the Amendment also had support from states that did not go as far in recognizing religious freedom or church-state separation--even from New England states that maintained systems compelling taxpayers to support clergy, a practice the Virginia statute forbade. (It said that "no man shall be compelled to frequent or support any religious worship, place, or ministry.") The First Amendment reflected, significantly although not entirely, a "federalism" position confirming that the matter of religion would be outside federal power, left to the states: Virginia and New England could each follow their own policy.

But "not entirely." It is likewise wrong to say the Virginia statute--more precisely, as Trump's proclamation says, its "principles"--had nothing to do with the First Amendment. Talking specifically about "inspiration," there is the connection  through Madison, who led the drives to adopt both the Virginia statute and the First Amendment. The dissenting evangelical groups who pressed (and pressed Madison in particular) for the Amendment advocated for religious freedom as a substantive right, not as a means of protecting Virginia's or other states' discretion to decide all religious-freedom matters however they wished.

Among the principles embodied in the Virginia statute, there was wider consensus across the states on what would typically be called principles of free exercise--i.e. the right to profess and exercise a faith without coercion--than principles solely of non-establishment--e.g. no money in any form to support religious institutions or activities. Even the New England states, with their funding for clergy, simultaneously had provisions guaranteeing free exercise to all faiths. Trump's proclamation quotes a "free exercise" portion of the Virginia statute.

And the Virginia statute had greater influence down the road, as all states eliminated their taxes for clergy by 1833. In that sense, the proclamation is correct that the statute "has shaped and secured our cherished legacy of religious liberty."

(Finally, just what our "legacy of religious liberty" means in all contexts of tax-supported funding is another question. The consensus rejection of  affirmative funding uniquely for clergy does not decide the question whether religious providers of secular services--education, social services, healthcare--can, or even must, be included in general programs of funding that support those services. Principles of religious liberty might disapprove such inclusion--but they might also call for it. That's the issue the Court is working through today.)

January 16, 2018 in Berg, Thomas, Current Affairs | Permalink

Monday, January 15, 2018

Teleforum on the "Parsonage Allowance"

I enjoyed speaking on this recent Federalist Society Teleforum, "Is the 'Parsonage Allowance' Allowed?" We discussed the tax-code provision permitting ministers to exclude from their gross income a housing allowance provided by their employer, up to the fair rental value of the home. Last October, Judge Crabb (W.D. Wis.) invalidated the provision as a violation of the Establishment Clause. If that ruling stands on appeal, the cost to religious organizations around the nation--the cost of making up for the new tax liability by paying additional salary--would likely exceed $1 billion yearly. That estimate, along with very useful insight on the provision and how organizations might respond to its invalidation, was provided by my teleforum co-speakers, John van Drunen and Michael Martin of the Evangelical Council on Financial Accountability (ECFA--an organization that does great work encouraging sound financial practices by religious nonprofits).

Here's the concluding bit from my own remarks (Download Housing Allowance - FedSoc Teleforum 2018-01-12 (delivered), which argued that the housing-allowance exclusion is quite defensible as constitutional but faces risks on appeal:

Ultimately, the result in this matter depends on the court’s attitude toward provisions that specifically accommodate religion. The exclusion will be upheld if the court takes a deferential approach and allows the government leeway as long as it’s reasonably promoting valid church-state concerns like denominational equality and nonentanglement in religious questions, and is not directly imposing a significant burden on anyone else. I believe that is the correct approach—the most consistent with the text, tradition, and precedents—especially with respect to treatment of ministers. But there are certainly judges who view it as presumptively unfair to exempt religion when arguably comparable nonreligious activities are not exempt, and they are likely to view the justifications for doing so here as insufficient.

Our religious liberty clinic at St. Thomas defended the provision at length in an amicus brief in a 2014 appeal, where the Seventh Circuit dismissed the  challenge to the provision for lack of standing.

January 15, 2018 in Berg, Thomas, Current Affairs | Permalink

Friday, January 5, 2018

4th Circuit Win for Pregnancy Care Center in Compelled-Speech Case

The Fourth Circuit ruled today that the city of Baltimore cannot compel a pregnancy-care center to post signs in its waiting room stating that it does not perform or refer for abortions. The Center is a Christian non-profit operating in space provided rent-free by a Catholic parish. It argued that the ordinance forced it to raise, in the sensitive context of "its own waiting room," the topic--abortion--that is "at odds with its foundational beliefs and with the principles of those who have given their working lives to it." The opinion, by Judge Wilkinson, rejects the city's arguments that all of the Center's speech is commercial speech and professional speech, and thus deserving lesser First Amendment protection, simply because it provides (free) ultrasounds, counseling, and other services. The court then concludes that the ordinance is not narrowly tailored:

Baltimore seeks to combat deceptive advertising and consequent delays in abortion services. In that respect the ordinance is quite overinclusive. It applies to pregnancy centers without regard to whether their advertising is misleading, or indeed whether they advertise at all. [T]he direct application of laws prohibiting misleading advertising might provide a better fit for the problems about which the City is concerned.

      There are, in short, too many problems with the City’s case. The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand.

Becket, who has litigated the case very well as always, has a page of resources on it. The St. Thomas Religious Liberty Appellate Clinic, which I supervise, filed an amicus brief supporting the clinic on behalf of the Democrats for Life and the Christian Legal Society. We argued, among other things, that to call the speech here "commercial," when the Center charges no money for its services and the law does not target any advertising itself, 

would expand that category to sweep in not just the Center, but a wide range of organizations and ministries that provide free services to those in need. This effect would follow, first, from the City’s arguments that the Center “proposes a commercial transaction” and has an “economic motivation.” The City argues that the Center fits within those categories because, although it offers services for free, the services are “commercially valuable”—that is, they could be provided for money. But nonprofit or religious soup kitchens, pastoral counseling services, immigrant/refugee ministries, and countless other organizations all offer free services that could be provided for money. By the City’s rationale, all of these organizations could be subjected to disclosure mandates and other intrusive regulation.

The Fourth Circuit distinguished the case from the NIFLA case currently before the Supreme Court: "In [NIFLA], the court applied the professional speech doctrine [reducing the level of speech protection] only to compelled disclosures in clinics licensed by the state. The Ninth Circuit did not reach the question of whether the doctrine applied to disclosures required in unlicensed pregnancy centers like the one at issue here."

January 5, 2018 in Berg, Thomas, Current Affairs | Permalink

Wednesday, December 27, 2017

Dreher on Decline, Fall, and What Then: the Habsburgs and Today

Rod Dreher has a thought-provoking post reflecting on Joseph Roth's 1932 novel The Radetzky March, which narrates the decay and collapse of the Habsburg empire and society, culminating in WWI, through the story of one doomed aristocratic family:

      What makes Radetzsky resonate so deeply is that the story it tells is a universal one, though it happens to be set in a particular time and place. It is a story about the effect of time on all human institutions and ways of seeing the world. It’s impossible to read Radetzsky without wondering if our own liberal democratic institutions and ways of ordering our experiences are declining as surely as the Austro-Hungarian monarchy — and we can’t see it clearly because we are caught up inside it, and we have powerful internal confirmation biases telling us that something this fine should be eternal....

      The problem is that the people who would have been capable of making the kinds of changes that might have saved the system in some form were incapable of thinking outside the system. Consider how hard this would be for anybody, in any place and time. As Kierkegaard said, life has to be lived forwards, but can only be understood backwards.

      Think about how the Republican Party, for example, could not see Trump coming, even though the signs were there.... Or think beyond the GOP, to the entire system. We can see that big, big changes need to be made, especially economically. But where is the will to make the changes? And who knows exactly what to do? We should also see, but many do not, that the way we are living in general is unsustainable. But we aren’t at the crisis point yet.

Much more follows: about Patrick Deneen's new book Why Liberalism Failed, and, as one might expect, how this relates to the "Benedict option."

December 27, 2017 in Berg, Thomas, Books, Current Affairs | Permalink

Wednesday, December 6, 2017

Laycock/Berg at Vox on Masterpiece

Doug Laycock and I did another piece, this one at Vox, explaining how the Court can and should rule for the baker, under the Free Exercise Clause, in a way that gives meaningful protection to both same-sex couples and religious objectors. (Several editor solicitations.) Conclusion, after going through the analysis:

We should not have to go through this detailed analysis to protect a simple act of conscience. Same-sex couples should be free to marry, with fancy weddings and wedding cakes, and conscientious objectors should not be required to assist. But under the Supreme Court’s interpretation, the Constitution protects religious conscience only against laws that fail its test of general applicability. Fortunately for Jack Phillips, the Colorado law as it was administered fails that test.

December 6, 2017 in Berg, Thomas, Current Affairs | Permalink

Masterpiece, Free Exercise, and Oral Argument

Thanks to Marc for describing how the free-exercise claim in Masterpiece Cakeshop took on more prominence than most people expected in Tuesday's oral argument. Doug Laycock and I have a piece in the New York Daily News explaining the free-exercise argument detailed in our amicus brief, and how it seemed to attract several justices' interest Tuesday. From the piece:

Justice Samuel Alito called it “disturbing” that the other three bakers could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.”

 

Justice Anthony Kennedy, likely among the swing votes, raised another piece of evidence. One of the state commissioners who ruled against Phillips stated that “freedom of religion . . . used to justify discrimination . . . is one of the most despicable pieces of rhetoric.”

 

Not content to criticize Phillips’ traditionalist view of marriage, the commissioner invoked slavery and the Holocaust as comparisons. No wonder Kennedy suggested the case involved “a significant aspect of hostility to a religion.”

I should say that our amicus brief did not emphasize "animus" or hostility as the essence of the free-exercise violation. We focused on the state's objective discrimination in protecting the other bakers and refusing to protect Phillips, while making (in the case of the state court) flatly inconsistent arguments concerning the two situations. If the free-exercise claim indeed prevails, it will be interesting to see how much it depends on a finding of animus and how much on the objective differential treatment.

Our brief also emphasized the importance of protecting both sides in the conflict between same-sex couples and religious traditionalists. Although oral argument is always an uncertain indicator, it was encouraging to see Justice Kennedy, the author of Obergefell, sound that same theme in the oral argument. From our Daily News piece:

On Tuesday, echoing his earlier argument for gay couples, Kennedy summed up this case: “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

December 6, 2017 in Berg, Thomas, Current Affairs | Permalink