Mirror of Justice

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Thursday, March 12, 2015

Amicus Brief in Marriage Cases: Protecting Same-Sex Marriage and Religious Liberty

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.

Tom B.

March 12, 2015 in Berg, Thomas | Permalink

Tuesday, January 27, 2015

CLS (St. Thomas Law Clinic) Brief Defending NC School Choice

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.

January 27, 2015 in Berg, Thomas, Current Affairs | Permalink

Sunday, December 7, 2014

Martha White Price, UST Law: "Why I Fell in Love with Rural Legal Practice"

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.

December 7, 2014 in Berg, Thomas | Permalink

Mourning The New Republic--at Slate!

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." 


December 7, 2014 in Berg, Thomas | Permalink

Friday, December 5, 2014

At the Supreme Court: The Meaning (and Meaningfulness) of Pregnancy Non-Discrimination

(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.

Continue reading

December 5, 2014 in Berg, Thomas | Permalink

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