Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, November 7, 2014

Becket Fund Hiring

A job announcement from the Becket Fund:

Legal Counsel


The Becket Fund for Religious Liberty seeks an attorney to join its team of legal counsel advocating for religious liberty for people of all faiths. The ideal candidate will have the following qualifications: (a) one to three years of active litigation experience, preferably in federal court; (b) excellent research, writing, and oral advocacy skills; and (c) a federal or state appellate clerkship. 


Applicants should send a cover letter, resume, and two writing samples to Elizabeth Dobak at edobak@becketfund.org.

November 7, 2014 in Berg, Thomas | Permalink

Thursday, November 6, 2014

Religious Accommodation in the Welfare State: Establishment Clause Issues

(from Tom Berg) Increasingly, opponents of religious-freedom exemptions or accommodations  have focused on the argument that it's impermissible to exempt religious conduct when it causes anything that the government has defined as a legal harm to others. And increasingly opponents  argue that such exemptions are not only inappropriate to mandate under a religious-freedom provision, but are actually unconstitutional even when the legislature itself adopted the exemption. A prime example is Fred Gedicks' and Rebecca Van Tassell's argument that ruling for employers in the contraceptive-mandate cases would violate the Establishment Clause if it meant the employees lost their legal claim to contraception coverage that the HHS regulation gave them (even if the government could provide access some other way).

The premise of this argument is that, as Gedicks and Van Tassell put it, “permissive accommodations that require unbelievers and nonadherents to bear the costs of someone else’s religious practices constitute a classic Establishment Clause violation.” They analogize it to the "classic" 18th-century cases of tax support for the favored church and disabilities on dissenters.

I agree that effects on others may be a good reason to deny a religious exemption. But I think that when the legislature has reasonably determined an exemption is warranted, to impose strict Establishment Clause limits preventing such exemptions is misguided: it rests on weak theoretical premises and an inapt historical analogy. In my new article on religious accommodation in the welfare state (full text here), I develop this argument. An excerpt:

But those [classic] establishments pressured dissenters to attend the favored church and required them to pay taxes for its support. Such requirements differ from regulatory exemptions in the very ways that are at issue. Compulsion to attend a church is indeed compulsion to engage in a religious practice, something that no regulatory exemption requires. Required tax support for the favored religion removes no legal burden on that faith and thus serves no free exercise interest. Accommodations from regulation serve those interests. To cite forced worship or tax support as the analogies that condemn accommodations is to beg the very questions at issue.


A more pertinent historical case for religious exemptions is the original “benefit of clergy,” the arrangement by which clerics in the medieval church were free from civil jurisdiction—triable and punishable only in church courts—for any felonies they committed. King Henry II’s attempt to constrict this privilege and prosecute “criminous clerks” in royal courts for rapes, murders, and thefts lay at the core of his confrontation with Archbishop Thomas Becket from 1163–1170. Unlike compelled worship or tax support, benefit of clergy actually involved the feature relevant to accommodations: exemption of religious actors from secular regulation when they had caused harm to others....


But rejecting benefit of clergy as an incident of establishment does not mean rejecting most modern accommodations, for there are multiple differences between the two. First, benefit of clergy was for the favored church (in medieval Europe, the Catholic Church). Second, it shielded wrongdoers from state jurisdiction even when there was no particularized conflict between the law in question and the demands of faith....


Finally, benefit of clergy allowed serious, direct harms to the person and property of other individuals: murder, rape, theft. No one argues today that religious freedom blocks the government from acting against such basic harms. The issues concern laws that reflect the far more extensive aims of the post-New Deal state. Thus, any analogy to benefit of clergy merely returns to the question to what extent religious accommodation sets limits on the regulatory-welfare state when it affects the countervailing interest in free exercise of religion. Again, the proper balance between these two means recognizing government’s expanded power—but not simply deferring to whatever the government defines or asserts as a harm.

Tom B.

November 6, 2014 in Berg, Thomas | Permalink

Wednesday, November 5, 2014

Democrats for Life Statement on the Election

(from Tom Berg) "Pro-Life Democrats to Democratic Leadership: You Cannot Win When you Alienate 21 Million People [pro-life Democrats] in your Base."

The release includes a chart showing that the number of pro-choice Democratic members in the House is roughly the same now as in 1980.  The Democrats' loss of power in the House has correlated with the loss of pro-life members (and voters).

Yes, I know, this has been said many times before and the Democratic Party has ignored it.  As Kristen Day, DFLA's executive director, says in this post-election analysis: "I feel like we are in a time warp."

November 5, 2014 in Berg, Thomas | Permalink

Call for Abstracts: "Law, Religion, and American Health Care"

Here is a call for abstracts for a Harvard Law School conference (abstracts due Dec. 1, 2014):

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2015 annual conference, this year entitled: “Law, Religion, and American Health Care.”

Conference Description

Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated.  Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.  

This conference, and anticipated edited volume, will aim to: (1) identify the various ways in which law intersects with religion and health care in the United States; (2) understand the role of law in creating or mediating conflict between religion and health care; and (3) explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

November 5, 2014 in Berg, Thomas | Permalink

Tuesday, November 4, 2014

Religious Accommodation in the Welfare State: Hobby Lobby and For-Profit Exemptions

I'm summarizing two or three points of my draft article on "Religious Accommodation in the Welfare State" in separate posts, because they cover a bit of a spectrum. One argument is that although Hobby Lobby firmly establishes that commercial businesses have religious freedom rights, its results for exemption claims by businesses will be "far [from] radical":

As already discussed, the Court in Hobby Lobby held firmly that for-profit closely held corporations can assert religious freedom claims. That holding was correct because people should be able to carry their faith and conscience into their businesses, even when they incorporate, and because RFRA should be interpreted vigorously to take seriously people’s ability to follow their faith in all aspects of life.

At the same time, the holding of Hobby Lobby is also limited. After firmly establishing that the closely held companies could sue, the majority proceeded cautiously in assessing whether the mandate served a compelling governmental interest by the least restrictive means.

One conclusion from this, I explain in some detail, is that--contrary to the claims of some accommodation opponents--Hobby Lobby does not create a slippery slope in which enactment or recognition of any religious freedom exemption will lead to a flood of commercial-business claims:

Hobby Lobby should not deter decision makers from recognizing accommodations for religiously affiliated non-profits for fear that this will automatically trigger identical exemptions under RFRA for for-profit businesses. Such fears may have contributed to the decision by several civil rights groups, immediately after Hobby Lobby, to withdraw support for the federal gay-rights employment bill on the ground that it contained an exemption for religious organizations.[1] But the fact that Hobby Lobby extended the non-profit contraception accommodation to for-profits does not mean that the same thing will happen in other contexts—certainly not that it will happen willy-nilly.

[1] See Joint Statement on Withdrawal of Support for ENDA and Call for Equal Workplace Protections for Gay People (July 8, 2014),  (giving as one reason for withdrawal that “opponents of LGBT equality are already misreading [Hobby Lobby] as having broadly endorsed rights to discriminate.”). See also Thomas Reese, What’s Next in the Ongoing Struggle Between the Bishops and Obama?, Nat’l Cath. Rptr., July 25, 2014 (“Ironically, the Hobby Lobby decision discouraged compromise because the gay community feared that any exemption for religious nonprofits might be expanded to for-profit corporations by the courts. This, after all, is what happened in the Hobby Lobby case.”).

November 4, 2014 in Berg, Thomas | Permalink

Monday, November 3, 2014

"Religious Accommodation in the Welfare State"

I've posted on SSRN this new piece, forthcoming in the Harvard Journal of Law and Gender and growing out of the April 2014 Harvard Law School symposium on religious accommodation .  There are many grounds on which to defend religious accommodations.  My own emphasis and vocation on this subject is summarized in this snippet from the abstract:

The Hobby Lobby contraceptive litigation reflects, and may accelerate, a trend in which Americans’ divisions over economic regulation reinforce their divisions over cultural matters. If Americans further separate into religious opponents of regulation and secular, progressive proponents of regulation, polarization is likely to become increasingly unhealthy. This article continues a project I have begun of defending strong protection of religious freedom based on premises that are sympathetic, rather than hostile, to government regulation in general. This Article defends government accommodation of religious objectors as a valuable component in a well-functioning regulatory state.

The article has a few distinct components, and I'll do separate blog posts on a couple of them.

November 3, 2014 in Berg, Thomas | Permalink

Wednesday, October 29, 2014

UPS Does the Just Thing for Pregnant Workers--Going Forward

(From Tom Berg:) With oral argument approaching in the Supreme Court pregnancy discrimination case of Young v. United Parcel Service, UPS has announced that (as the Washington Post reports), "[S]tarting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well." The change in policy was announced to employees and in UPS's brief filed in the Court.

This is great news for UPS's female workers, those who are and those who will become pregnant. It also sends a high-profile message that accommodating pregnant workers is the just thing to do, especially when similar physical conditions stemming from (e.g.) on-the-job injuries are accommodated.

The Post reports that the brief of numerous pro-life organizations (which Lisa, Teresa Collett, and I helped draft) may have helped put pressure on UPS to change:

Young’s supporters say the UPS policy change comes as Young’s case has drawn increasing support from all across the political spectrum, including conservative groups opposed to abortion, like Americans United for Life, business groups, women’s groups, workers’ rights advocates and the left-leaning American Civil Liberties Union.

“This has been a public relations nightmare for UPS,” said Tom Spiggle, an employment attorney and author of a book on pregnancy discrimination, “You’re Pregnant? You’re Fired!”

This will not moot the Young case, because UPS still says its earlier denial of accommodation to Peggy Young was legal, and it's still defending against her damages claim.

Cross-posted at Whole Life Democrat)

October 29, 2014 in Berg, Thomas | Permalink

Wednesday, October 8, 2014

Sen. Hatch on Preserving Religious Freedom "As Social Reality and Constitutional Principle"

Sen. Orrin Hatch has been a great proponent of religious freedom, leading the sponsorship of statutes like RFRA and RLUIPA. He just gave the keynote address at the annual symposium of BYU's international law and religion center, where he spoke about both the achievement of religious liberty in America and the sobering, multiplying challenges to it.

I'm gratified that he started off with a quote from me that  "one of America’s greatest contributions to the world"--one that must be preserved and strengthened--"has been establishing religious freedom as both social reality and constitutional principle." He goes on:

Nor is religious freedom a uniquely American ideal.  In 1948, after the horror of World War II, numerous nations, including the United States, signed the Universal Declaration of Human Rights.  Article 18 of that Declaration states that every person has a fundamental right to freedom of religion, including “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Here again we see the three dimensions of truly robust religious freedom: belief and behavior, private and public, individual and collective.  Genuine religious freedom exists when these three dimensions are both social reality and constitutional principle, and are understood as fundamental.

Then he talks about the threats to religious liberty today--many of us know them well, but it's a useful summary. And he ends with some thoughts on how "to strengthen religious freedom as both social reality and constitutional principle," like:

Sixth, we must affirm our own individual faith and devotion.  As community leaders, we have the ability to reach and influence broad audiences.  By publicly affirming our faith, we both show that faith does have a place in the public sphere, and show community members that their leaders place a priority on religion.  This does not mean we should become public pastors.  But it does mean we should not be shy about our own beliefs.  By demonstrating that religion is important to our own self-identity and desire to serve, we show our community members that religion is a thing of value and source of motivation.

And who knows?  Showing others how religion has changed our lives may spark a desire in them to seek greater devotion in their own lives.  There can be no greater protector of religious liberty than a society composed of individuals who actually value religion.

Right. Religious liberty protects the ability to have a vibrant, outward-looking, growing faith, but it works the other way too: as John Garvey, Steve Smith, and others have emphasized, religious liberty will be protected if (and only if) there are lots of believers and they can't be ignored. It's also crucial (and I know Sen. Harch would agree) that the manner of doing so be humble and service-oriented, never about the religious believer's "prerogatives."

October 8, 2014 in Berg, Thomas | Permalink

Friday, October 3, 2014

"The Meditations of Europe's Last Brewmaster Nun"

Interesting story, ending with this thought:

“You can serve God everywhere, no matter what profession or job you have,” [Sister Doris] says. “As Saint Benedict wrote, ‘in all things God may be glorified,’ and that is also true of beer.”

October 3, 2014 in Berg, Thomas | Permalink

Tuesday, September 30, 2014

Interview at Millennial Blog on Pregnancy Discrimination Case

I did an online interview for Millennial, a popular blog by and for young Catholics, about the current pregnancy discrimination case, Young v. UPS, and the amicus brief filed by 23 pro-life organizations.  I won't quote myself at length here in a teaser--but I do emphasize that the brief makes "a strong statement: pro-life groups believe that supporting pregnant women (including through effectively enforcing non-discrimination laws) is fundamentally pro-life."

September 30, 2014 in Berg, Thomas | Permalink