Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, September 21, 2016

My Take on "Religious Exemptions and Third-Party Harms"

Scholarship about religious-freedom exemptions from laws has increasingly focused on whether the existence of any "harms to third parties" is a ground for holding that an exemption is not required by religious freedom principles, or is perhaps even forbidden by the Establishment Clause. I've just published my analysis of the question, in the Federalist Society Review. A couple of excerpts:

The chief assertion of this article is that harms to others should not be conclusive against religious exemptions under either free exercise or nonestablishment principles. Such harms can certainly be a reason to deny exemption, but they are not the end of the inquiry: a number of factors must be considered. In particular, I argue, Establishment Clause limits on religious exemptions should not be strict. An exemption is not unconstitutional merely because it has negative effects on others: the burdens on others must be significantly disproportionate to the burdens that it removes from religion....

Under post-1937 constitutional jurisprudence, government has broad prima facie power to define, declare, and prohibit [legal] harms. The modern state is not limited to imposing liability for actual harmful effects; it may declare legal rights designed to head off such effects. And it may frame them as benefits or rights for individual third parties. For example, to prevent the ultimate material harms of labor strife and unfair treatment of employees, government can declare rights of employees to unionize and can allow individuals to sue to enforce the right.

But just because government can prima facie regulate does not mean it can do so in ways that substantially burden religious exercise. The very point of the freedoms listed in the Bill of Rights, including religious freedom, is to place limits on actions otherwise within the government’s power. If religious freedom confers no right to harm others, and the government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom. For example, once Title VII and analogous laws defined various forms of discrimination as a legal harm to employees, religious organizations faced lawsuits triggering civil court review of their employment decisions concerning their clergy and other leaders. Their ability to choose their leaders was preserved only by a court-ordered religious exemption: the ministerial exception, affirmed in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC....

 If religious freedom is to continue receiving strong weight in an era of greatly expanded government, the existence of some harm to other individuals cannot be enough in itself to deny exemption or accommodation. On the other hand, harms to others certainly are grounds for limiting religious freedom in a number of circumstances.

... And then you read the rest to find out when. (I've done a longer version of the arguments here.)

September 21, 2016 in Berg, Thomas, Current Affairs | Permalink

Monday, August 29, 2016

"Public Faith: A Christian Voice for the Common Good"

Some thoughtful and committed folks, mostly younger evangelicals, have announced this venture and issued a vision statement responding to our current situation, which they describe as follows:

In the midst of another divisive election and a political culture that thrives off of conflict, many Christians and other Americans are tempted to check out and claim the posture of a conscientious objector or to dig in for even greater political hostilities. We believe that neither political withdrawal nor reinvigorated culture wars by Christians will help our nation and communities through the difficult challenges we face.

The headings in the statement include (A) "Pluralism and 21st-Century Religious Freedom"; (B) "Poverty, Stewardship, and Caring for the Most Vulnerable"; and (C) "Strengthening Families and Reducing Abortion."

Check it out.

August 29, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Sunday, August 28, 2016

"Progressives Embrace Religious Liberty to Defend Social Action"

Religion News Service, through Crux, reports the shocking news. Progressive churches and social service ministries sometimes run up against legal regulations that prevent them from serving others, and they sometimes seek exemptions--including under those awful state religious-freedom statutes. They sometimes even do it when their work could cause "third-party effects," for example on homeowners in the neighborhood of a homeless shelter or food pantry. Who would've thunk it?

This is a reminder, as I've argued here, that religious freedom is for everyone, and deserves support from progressives and moderates as well as conservatives.

August 28, 2016 in Berg, Thomas, Current Affairs | Permalink

Thursday, August 25, 2016

"What Became of the Christian Intellectuals?"

Today, while in Boston visiting potential colleges with our son, we toured the JFK Presidential Museum. It's fascinating set of exhibits with artifacts, news footage, audio interviews, letters, etc.--well worth an afternoon when you're in town. One artifact was a marked-up invitation list for a 1962 White House state dinner honoring Andre Malraux, then France's Minister of Cultural Affairs. Here's the first page of the list:

JFK Museum - Dinner Invite List

They would have been decent table company, no? (I'll take the list as an official White House recognition that Murray and Niebuhr, as I've argued, should go together--even if the Niebuhrs for whatever reason were crossed off this dinner.)

So I came back to our B&B thinking about the decline in public prominence of Christian intellectuals in America since 1962, and a friend pointed me to Alan Jacobs' new essay in Harper's--subtitled "What Became of the Christian Intellectuals?" Unsurprisingly with Jacobs, it's a great read. Here's a taste of his explanation (which, in full, touches on the careers of, among others, T.S. Eliot, Maritain, Niebuhr, Auden, Richard Neuhaus, Cornel West, and Marilynne Robinson): 

It was the Sixties that changed everything, and not primarily because of the Vietnam War or the cause of civil rights. There were many Christians on both sides of those divides. The primary conflict was over the sexual revolution and the changes in the American legal system that accompanied it: changes in divorce law, for instance, but especially in abortion law. (Many Christians supported and continue to support abortion rights, of course; but abortion is rarely if ever the central, faith-defining issue for them that it often is for those in the pro-life camp.) By the time these changes happened and Christian intellectuals found themselves suddenly outside the circles of power, no longer at the head table of liberalism, Christians had built up sufficient institutional stability and financial resourcefulness to be able to create their own subaltern counterpublics. And this temptation proved irresistible. As Marilynne Robinson has rightly said in reflecting on the agitation she can create by calling herself a Christian, “This is a gauge of the degree to which the right has colonized the word and also of the degree to which the center and left have capitulated, have surrendered the word and also the identity.” 

As they say, read the whole thing.

August 25, 2016 in Berg, Thomas, Religion | Permalink

Alan Noble on Protecting Religious Colleges, with Sympathy for LGBT Students

Alan Noble, a professor at Oklahoma Baptist University, responds to the welcome dropping of the onerous proposed regulations on religious colleges in California. He notes that the issue will surely return, perhaps as soon as next year. The way forward, he argues, is to preserve the freedom of religious (among other) colleges to maintain their thick identity through policies on student conduct, while making sure that LGBT students have notice of policies that will affect them and also have the ability to exit the college and attend elsewhere without severe cost. Along the way he explains in concrete terms why the colleges' freedom matters and should be protected, why LGBT students may face difficulties that call for a sympathetic response, and why the Bob Jones model of handling the problem--strip the colleges of tax exemption--while perhaps appropriate for the situation of race discrimination, is inappropriate for this situation. A small sample of the arguments:

If [other] students were prohibited from using their government aid at these religious schools, [as a sanction for the schools' policies,] the consequences would be severe for these communities. But the policy would also represent a weakening of the U.S.’s commitment to support dissenting views. Religious schools offer public benefit with the education they provide, but also in their cultivation of thick beliefs that may differ from public orthodoxy....

     No response to these scenarios can erase all the conflicts and heartbreak between students, families, and academic communities, but through a model of communication, mutual respect, and dignity, schools can create a healthier environment for everyone....

     ... By increasing transparency about Title IX exemptions and codes of conduct, easing the transfer process for students who cannot abide by the codes of conduct, and taking a strict stance on bullying and abuse, religious schools can retain their distinctive mission while protecting students.

One need not agree with everything in this piece, and the details about disclosure/notice and exit can matter a lot. But overall, IMO, the piece is a good example of how to argue for the freedom of colleges and other religious nonprofits, in the face of current challenges, in a way that is most likely to convince those in the middle who are open to persuasion.

August 25, 2016 in Berg, Thomas, Current Affairs | Permalink

Monday, August 8, 2016

Friedersdorf on Trump Appointments and Religious Liberty

At The Atlantic, Conor Friedersdorf argues that one can't trust Trump-appointed judges even on religious-liberty questions. Responding to Rod Dreher's argument that Trump would be only indifferent to religious liberty while Clinton would be actively hostile, Friedersdorf writes:

     The glaring flaw in this logic is that Trump is not, in fact, ambivalent about protecting the liberty of religious Americans, he is openly antagonistic to it––it’s just that he has singled out Muslim Americans rather than Catholics or Jews or Mormons.

     Dreher is blind to the degree to which their respective fates are tied.

     If Trump and the judges he appoints help local communities to prevent the construction of mosques, other zoning bodies will use the same precedents to rein in churches; an effort to ban headscarves could have implications for Sikhs and Jews; whether a Muslim cab driver is able to refuse passage to someone ferrying alcohol will bear on whether a Christian can decline to bake a cake for a gay marriage. It’s hard to anticipate exactly what controversies will arise in future years, or how the precedents set will be applied still farther in the future, but suffice it to say that any legal attack on one faith’s religious liberties threatens every faith.

I'm very sympathetic to the argument that religious-liberty claims stand and fall together. That's partly for the precedent-based reasons Friederdorf cites. And it's partly because I think judges and the public--at least those in the reachable middle, who in my view are always the key audience--will tend to be more sympathetic to any given religious-liberty claim in an atmosphere where all such claims are treated with respect, and conversely less sympathetic when religious-liberty claims are seen as special pleading for one's underlying views. I just gave a talk at BYU on why our current atmosphere of reaching for labels of "Muslims terrorists" and "Christian bigots" is unhealthy for religious liberty. In my view, Trump's inclinations are a part of that miasma.

At the same time, I have to be honest and say I don't think I'm persuaded by Friedersdorf if he is arguing that as a matter of pragmatic self-interest, conservative Christians should fear Trump just as much as Clinton. I don't want this to be a "Clinton vs. Trump" post (although I suppose it unavoidably has that element); I'm more interested in considerations about the dynamics of judicial protection of religious freedom. So here's why I think Friedersdorf's argument, while good in principle and in the long term, is not likely to convince religious conservatives in real-world terms now [ADDED FROM HERE]--if you start from the premise that Clinton judges will be unsympathetic to conservative Christian religious-liberty claims involving gay rights, abortion, etc.

First, Friedersdorf seems to assume that Trump-appointed judges will share Trump's personal authoritarian and anti-Muslim positions, [ADDED] which will then lead them to devalue religious liberty. But if his appointees are principled conservative judges, as are many on the recently released "short list," then they seem more likely to give consistent weight to religious-liberty claims, including those of Muslims. The stronger warning against Trump's likely pattern of appointments, it seems to me, is that there's no strong reason to assume he will be constrained by the short list, because he's shown so little inclination to be constrained by anything.

Second, the sequence Friedersdorf describes--"Trump judges first rule against Muslim claims, and then those rulings affect a case that comes along about about traditionalist sexual morality"--seems relatively unlikely. The likely order seems the opposite. For example, among the cases about objections to facilitation of allegedly-sinful behavior, there are many more disputes about wedding vendors and Catholic or evangelical colleges or social services than there are about Muslim cab drivers objecting to passengers with alcohol or checkout clerks objecting to ringing up pork. That's unsurprising given the relative number of Christian traditionalists and Muslims. The Christian-traditionalist cases seem more likely to come first. 

Finally, although I definitely think that religious liberty is strengthened for each claim by treating it as a powerful right for everyone, this effect is not conclusive: it's also true that there are factual differences in cases that allow judges to distinguish claims if they're strongly inclined to do so. If we assume that Trump appointees will want to target Muslims (which is questionable, see point #1 above, but let's assume it), they can likely find ways to distinguish the primary cases affecting traditionalist Christians. For example, more Muslim cases may involve government claims of national-security needs, as opposed to claims in the Christian-traditionalist cases about the need to combat discrimination.

In sum, while I think Friedersdorf's argument against Trump on religious liberty is right in principle, I'm unconvinced that he can make the case to religious traditionalists purely in terms of their own self-interest.

August 8, 2016 in Berg, Thomas, Current Affairs | Permalink

Saturday, July 30, 2016

Kaine Says He Still Supports Hyde Amendment

Since others have previously noted here the reports that Tim Kaine dropped his support for the Hyde Amendment--the ban on federal taxpayer funding for abortions--we should also note that he has now told CNN that he continues to support the Amendment and has not changed his position. 

It's legitimate, of course, to question whether this makes the slightest difference. The Clinton campaign says it does not; they seem to suggest (as reported by CNN above) that Kaine only "personally" supports the Hyde Amendment and will actually help support "carry out" efforts to overturn it. (This is an interesting, and not very comprehensible, extension of the "personal vs. political position" distinction concerning abortion.) It's far from unheard of, obviously, for a VP candidate to disagree with some aspect of the platform; but if he has to support "carry out" a given policy in his official acts, it's not clear what "personally" disagreeing could really mean. For example, what would he do if he had to break a tie in the Senate over Hyde? The Clinton campaign, as a tactical matter, may simply have OKed him to make this latest statement, in order to have out there a small symbolic nod toward the middle of the country on abortion without making any change in the announced policy.

Nothing more could be claimed for the effect of Kaine's position than this modest point: It is better, from the standpoint of affecting immediate policy, to have someone in a Democratic White House circle who has some qualms (however limited) about forcing others to support abortion, and is willing to express those qualms, than it is to have no one with any such qualms. When the Obama contraception mandate was amended in 2012 to make the first provision for the "accommodation" for nonprofit schools and charities--which, as refined and strengthened, may become the basis for resolving the issue--it was reported that Vice President Biden had led in expressing the need to do some such accommodation, prevailing over those on the side of the abortion-sympathetic groups, who had not expected any accommodation to be adopted. I would hope and urge that if Clinton is elected, Tim Kaine would play such a role, but I certainly don't know whether he would.

July 30, 2016 in Berg, Thomas, Current Affairs | Permalink

Tuesday, July 26, 2016

More on Trump, Clinton, Willing, and Proportionality

Following up on Rick's quick reply to me, an even quicker sur-reply:

Actually, in discussing votes for either Trump or Clinton, we (I?) kind of went on a tangent about whether one was/wasn't "willing" the accompanying bad stuff in voting for either candidate. In fact, neither one of us is really talking about "willing" the bad stuff--and whether you will the bad stuff does not (I think) depend on whether the bad stuff is substantially certain to happen. Theologians correct us here, but ... Even if one knows that Trump's day-to-day outrages will happen, and even if one knows that Hillary's attacks on religious freedom etc. will happen, that doesn't mean one wills either of them. You can will the good things associated with your chosen candidate (which can include, as Rick has indicated, the good of stopping the other (horrendous) candidate), and conclude that those good things outweigh the bad that is likely to come with the chosen candidate. So, as seems most common in the voting context, we are  talking (I think)  about material cooperation and proportional reasons for voting, not about formal cooperation. Again, theologians set us right if needed.
So then the issue becomes how bad each candidate is, given all the factors, and the alternatives, including the alternative of voting for neither. Then the point of my original post's first half--the response particularly to Rick's leadoff post--was that in such a calculus, Trump will still be very seriously bad, day to day and in unknowable, uncharted ways, even with all the checks on him. (As for "laziness" as a check, he doesn't seem to be very lazy about the things--often petulant and idiosyncratic things--that interest him most; that's part of why he's so risky.) And the point of my original second half was the very serious bad things with Clinton, which for me are more isolated but nonetheless very serious.


July 26, 2016 in Berg, Thomas, Current Affairs | Permalink

Monday, July 25, 2016

The Unavoidable Problem with Trump

In response to Rick: The most serious problem with Trump is not his policy prescriptions. Several of them are awful; in my view, a few, like infrastructure rebuilding and probable Supreme Court appointments, have positive elements. But it is not enough to predict or hope that the awful announced policy prescriptions would be blocked by others--even if that would likely happen. (I realize Rick isn't adopting that position but is just saying it's reasonable.) The fundamental problem is Trump's personality: the man exhibits a narcissistic disorder, obsessed with his own status and avenging slights, and reflexively doubling down in response to any criticism or challenge. The latest confirmation--small but striking, and the latest of many--was his remarkable post-convention monologue last Friday, in which he said he didn't care about Ted Cruz and then proceeded to spend 10 minutes revisiting what Cruz did and the revenge that he, Trump, would take. There is absolutely no telling what Trump might do with the day-to-day powers of the Presidency, including the keys to the nuclear codes. We would be in virtually uncharted waters.

If Trump is elected, then even if other actors would block his bad policy initiatives, there would be no way to avoid putting the day-to-day power of the office in his hands. There is no way to avoid saying, "This is the man who will make the crucial judgments in whatever (unknowable) crises arise." In that sphere, military and other actors would presumptively obey his orders, some of which the press might not learn about in time to speak against them. Some officials might resign rather than enforce them, but that dynamic puts us on the short road to constitutional crisis. In addition, the day-to-day power of the office includes public statements; his have been especially erratic, and toxic both in the immediate sense and to the long-term health of public discourse. No other actor--Congress, bureaucrats, press--can stop those, or their effects. They are inherent in electing him.

So ... if the argument "I don't will the bad things in Trump" depends upon a prediction that others will prevent those bad things, then one is in fact willing the day-to-day outrages and fiascoes that clearly, by nature, cannot be prevented. #NeverTrump.

This argument does not entail voting for Hillary. Of course, those who think the Democrats are wrong on most issues will be disinclined to vote for her even to avoid Trump. That's not my situation: I am a Democrat who thinks that party's positions on many issues are better for the common good. But I nevertheless have a serious struggle. That's not because Clinton's personality flaws are as bad as Trump's: however significant, her flaws are  not in his category. It's primarily because of two (for me) very serious issues--familiar but sadly becoming even more pointed this year. First is the further intensification of the party's abortion position. As  a pro-life Democrat, I put a high priority on strengthening social supports in order to reduce economic pressures to abort; but the party's new attack on the Hyde Amendment, and its increasing tendency to view abortion as in no way regrettable, make the conflict for pro-life liberals more serious than ever.

Second, as a religious freedom advocate who also supports some of the policies that have come in sharp conflict with religious tenets (policies like sexual-orientation anti-discrimination laws and the Affordable Care Act), I am disturbed by having seen first-hand the unwillingness of more and more Democratic leaders to support any accommodations that would meaningfully balance these two goals--particularly accommodations that would allow faith-based service organizations to follow their tenets while continuing to do their work helping others. This dynamic has become very powerful, very suddenly, and there are reasons to think that the Clinton executive branch will be even less inclined to accommodate than the Obama executive branch has been. (Note that in some cases, such as hiring based on religious belief by groups receiving federal grants, Obama has preserved freedom for religious organizations to maintain their faith-based nature, against intense pressure from anti-accommodation progressives. I have no confidence that Clinton will do the same.)

But even with these serious (in my view) problems with Clinton's likely policies, I cannot in conscience vote for Trump. I can't tell myself it would be OK--even on balance--because others will check him in in office. There will be pervasive features of his presidency that they can't check. So if I ultimately cannot vote for Clinton, the only options for me would be to vote third-party (I'm not attracted to the current ones) or write in someone.

This is a pretty long-winded assertion of my judgments, and I know we don't want election discussion to take over the blog. But in responding to Rick's suggestion about avoiding Trump's problems, I thought I should explain my thinking more fully.

July 25, 2016 in Berg, Thomas | Permalink

Pro-Life Democrats on How the Platform "Betrays Millions of the Party Faithful"

My colleagues at Democrats for Life, Kristen Day and Charlie Camosy, spell it out in the L.A. Times. The platform not only attacks the Hyde Amendment, they point out; in addition, it calls for repeal of any regulation impeding access to abortion, acknowledging no considerations on the other side, and removes the 2012  platform's endorsement of religious liberty in the context of abortion. A bit more:

The abortion plank in the 2016 Democratic platform effectively marginalizes the voices of 21 million pro-life Democrats. It means the party that is supposedly on the side of justice for the vulnerable no longer welcomes those of us who #ChooseBoth; that is, those of us who want the government to protect and support prenatal children and their mothers....

The Democratic Party's abortion stances have already caused many to leave the party, and many more will drop out because of the platform wording. The percentage of extreme abortion rights advocates is increasing in the party, but only because the total number of Democrats has shrunk to its lowest level since the Hoover administration.

July 25, 2016 in Berg, Thomas, Current Affairs | Permalink