Tuesday, May 19, 2015
The debate over state religious freedom restoration acts (state RFRAs) has obviously become white-hot, and it likely will heat up again in states in the future. For purposes of convenience and of the record, here is a collection of letters defending various state RFRAs, written to legislators considering such bills, by religious-liberty scholars--several of whom (including me) support same-sex marriage--who want to set the record straight on what such bills are actually likely to do. Among other things, the letters state that:
[From IN letter:] The most common charge opponents make against RFRA legislation is that it is a "license to discriminate." It is no such thing.... [Application of anti-discrimination laws] creates a serious conflict for religious individuals who personally provide creative services to assist with such weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is far from clear that the proposed Indiana RFRA would lead courts to recognize such an exemption....
[From GA letter:] Most RFRA cases do not involve anti-discrimination laws or suits between private parties.... Rather, they involve disputes between government and a religious individual or organization, and they arise when one of our vast array of government regulations turns out to burden one of the diverse religious practices of the American people.... State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths.
Georgia (Feb. 2015)
Indiana (Feb. 2015)
Arizona (Feb. 2014, to Gov. Jan Brewer; countering widespread misstatements about the likely effect of amendments to the state RFRA, even though some of the signers did not take a position on whether the amendments should be adopted)
Mississippi (Feb. 2014)
North Dakota (May 2012)
Thursday, May 14, 2015
Brandon Paradise on "How Critical Race Theory Marginalizes the African American Christian Tradition"
Brandon Paradise (Rutgers Law) has a valuable new article on "How Critical Race Theory Marginalizes the African American Christian Tradition." It's a lengthy piece that documents how critical race theory's methodology has been overwhelmingly deconstructionist and secular, ignoring the central role of Christianity in the lives of most African Americans and in the civil rights movement.
As I read him, Professor Paradise thinks has had several troubling consequences (even though he understands how realities like white Christian support for slavery and quietism within the black church have helped spurred it). First, it has cut off critical race theory from a central aspect of the lives of a large percentage of African Americans--an ironic result given the critical-theory premise that “'the actual experience, history, culture, and intellectual tradition of people of color in America' should serve as the epistemological source for critical scholars." (Quoting Mari Matsuda.)
Second, it significantly eliminated from critical race theory the call for individual spiritual transformation that was an important part (although of course, Prof. Paradise recognizes, not the only part) of the message of M.L. King and other civil rights leaders. Third, and related, Paradise notes how the deconstructionist orientation limits the ability of the theory to appeal to universal principles of human dignity, human nature, and morality in the way that the Christianity-grounded civil rights movement did. Including that old concept of natural law, which just happens to be central to the "Letter from a Birmingham Jail." About the letter, Paradise writes:
[F]ar from offering an indeterminacy critique—the thrust of which illustrates that first principles cannot compel a specific vision of community—King resolutely argues that first principals of natural law compel him to reject a segregated vision of community in favor of a desegregated one.
Prof. Paradise then offers some sober hope about the possibilities for developing an African-American Christian approach to law:
Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. However, not all is grim. While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American
Christian approach to law has a natural and substantial constituency outside of the ivory tower.
Lengthy, but as Larry Solum would say, "highly recommended." In this more pluralistic age, civil-rights theory and practice surely can't be grounded solely in the Christianity that inspired the movement of the 1960s: I think Prof. Paradise would recognize that. But he makes a good case that Christianity has been far more marginal among the theorists than it ought to be.
Thursday, April 30, 2015
That's the title of my short contribution to the wonderful Scarpa Conference that Patrick organized (many thanks, Patrick). Here's the opening:
I’m a Protestant, a mainline Protestant, an Episcopalian even. But for ten years I have been the non-Catholic “participant-observer” at the Mirror of Justice. The other bloggers have been very hospitable to me, even though they may not have fully understood why I’m here. So that is my question for today, the one immortalized by Admiral James Stockdale in the 1992 vice presidential debate: “Who am I? Why am I here?” What does Protestantism have to contribute to the Catholic legal theory project, and why would a Protestant (or a Catholic legal theorist) care?
One of the theses is that Catholicism and Protestantism have different characteristic emphases that apply to the nature and purposes of law. Borrowing from David Tracy, Andrew Greeley, Mark Massa, and others, I describe these as "analogical" versus "dialectical." The former (characteristically Catholic) emphasizes how God is present in features and institutions of the world, including but not only the Church; the latter (characteristically Protestant) emphasizes the distance between God and human beings and worries about investing human institutions, including the institutional Church, with too much reverence of importance. And:
Protestant and Catholic traditions must, and do, find ways to sound themes that are most explicit or central to the other tradition. Instead of polemics about how the other side gets it wrong, we should recognize the other’s dominant themes in our own tradition and learn from how the other tradition articulates those themes.
More specifically, to justify a principle, practice, or institution, we need both analogical arguments and dialectical arguments. We need to show both how it facilitates humans’ virtuous capabilities and how it protects against selfishness and pretension.
... With suggestions about how to apply this to religious freedom and some other areas of law.
Thursday, March 12, 2015
Doug Laycock and I have filed an amicus brief in the same-sex-marriage cases on behalf of ourselves, David Blankenhorn of the Institute for American Values, and Professors Marie Failinger and Edward Gaffney. It argues that the Court can and should protect both the right to civil marriage for same-sex couples and strong rights to religious liberty for religious objectors. From the summary of argument:
The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.
The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages.
Tuesday, January 27, 2015
The Religious Liberty Appellate Clinic I supervise at St. Thomas has filed amicus briefs in a pair of important school choice cases. The North Carolina Supreme Court is reviewing a trial judge's invalidation of the state "opportunity scholarship" program that helped low-income students attend private K-12 schools if their families choose. (See the Institute for Justice description of the cases.) The issues are important not only because the program serves the commendable goal of empowering parents and families, but also because the trial court's ruling of invalidity made a hash of the "state action" doctrine, conflating religious admissions and hiring criteria by private schools with unconstitutional religious discrimination by the state.
The plaintiffs raised several challenges to the statute, including that it allows families to use their scholarship money at religious schools that allegedly discriminate by considering religious affiliation in their employment or admissions policies. The amicus brief focuses on this issue, arguing that to strike down the program on this ground would create severe tensions with the religious freedoms guaranteed by the U.S. and North Carolina constitution: schools’ freedom to maintain their religious identity, and parents’ freedom to choose a school with such an identity.
The St. Thomas news release tells you more about the amici--who include the Christian Legal Society (CLS), evangelical Christian school associations, and Catholic dioceses--and about our clinic. The previous briefs we have filed are collected here. 3L student Jim Kovacs did an excellent job as the primary drafter of the NC brief. And thanks to Debbie Dewart, our co-counsel in North Carolina, and Kim Colby of CLS, co-counsel on this and many other of the clinic's briefs.
Sunday, December 7, 2014
There is a crying need for lawyers in rural areas, especially the rural Midwest. Despite the opportunities there to serve people, opportunities available in a tight job market, students often are reluctant because they wonder whether the practice will be satisfying. Here is a wonderful piece from St. Thomas law student Martha White Price (class of 2015) on why it is satisfying. Martha currently clerks in the public defender's office for Owatonna, MN (population 25,600) and surrounding rural areas, doing highly substantive legal work. She concludes her article:
Volunteering to clerk in a rural area was a game changer for my law school career. I encourage every law student to give it a shot. Even if you don’t fall in love like I did, you will certainly sharpen your skills, make friends, and help people who desperately need it.
I hope her experience inspires other students. MOJ-ers, I encourage you to pass this--or some experience like it--on to your students.
At Slate, media professor David Greenberg mourns the effective death of The New Republic, which he attributes not so much to digital-media economics as to the fact that the magazine's one-time "heterodox liberalism--the willingness (indeed the eagerness!) to test liberal thinking from within the liberal family—is now being squeezed":
Internet journalism has made it easy to find opinions that confirm one’s own beliefs and flatter one’s prejudices... The left and the right are retreating into cocoons of information and opinion, on cable TV and social media....
[The end of TNR is regrettable because:] Conservatives need a liberal magazine that’s unpredictable enough to make them want to read it. Liberals and leftists need a magazine that will prod them to question their beliefs, and revise or strengthen them.
I'm glad Slate was willing to publish a piece that scores a bullseye on exactly what's wrong with ... Slate. I'm refusing to read the comments to the piece, but I can only imagine they will validate everything Greenberg says about Internet readers expecting "cocoons of [confirming] opinion."
Friday, December 5, 2014
(From Tom Berg:) The Court heard oral argument Wednesday in Young v. United Parcel Service, the case involving accommodations for pregnant workers under the Pregnancy Discrimination Act of 1978 (the PDA). As I've mentioned in a prior post, Peggy Young had sought and been denied the same sort of light-duty accommodation that had been given to workers with similar work limitations from other causes, such as on-the-job injuries, disabilities under the ADA, and conditions or circumstnaces (medical problems, drunk-driving convictions) that led to a driver-employee's loss of a Department of Transportation commercial truck-driving license. And as I've detailed, 23 pro-life organizations filed an amicus brief arguing that the PDA should be interpreted to require pregnancy accommodations when the employer made accommodations for other such categories of workers who were (in the words of the statute) "similar in their ability or inability to work."
I did a summary of the case and the pro-life brief Wednesday for Christianity Today. Many media outlets, including the N.Y. Times and the Wash. Post, remarked on the convergence in this case of pro-life groups and pro-choice feminist groups (it was striking, at the press conference after the argument, to see Galen Carey of the National Association of Evangelicals followed by Marcia Greenberger of the National Women's Law Center, both expressing support for strong protections for pregnant women). As I said in my CT piece,
I hope that the message of this brief will resonate, and draw attention, in the broader society: supporting pregnant women is a pro-life cause, and pro-life groups of all kinds are strongly committed to it.
Of course, oral argument focused on the key statutory-interpretation question: are the text and purpose of the PDA violated only when the employer disfavors pregnancy facially in a policy or by virtually singling it out for denial, or are they also violated when the employer makes accommodations for workers whose conditions, albeit from another source, make them "similar in their ability or inability to work"? The arguments got a little intricate, and some justices (Roberts, Kennedy) said less in this argument than usual, giving little or no indication how they were inclined.
Friday, November 7, 2014
A job announcement from the Becket Fund:
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 email@example.com.
Thursday, November 6, 2014
(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.