November 16, 2013
"It Was Twenty Years Ago Today ..." (Happy Birthday to RFRA)
On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise. A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America. A lot has happened in 20 years. A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate. But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:
... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
A few remarks about that quote. The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch. That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values. (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)
Notice the implications of President Clinton's remarks for these matters. First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society. Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens. Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs. Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."
In 1993 virtually every member of Congress agreed with those remarks and with the legislation. In 2013, that consensus has shrunk. But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.
(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)
November 09, 2013
Updated Response on Marriage Conscience ProtectionThe latest response from nine religious-liberty scholars supporting "marriage conscience protection" in same-sex marriage bills has been updated to remove some quotes from articles by two members of the opposing group of scholars, and to explain in a bit more detail why we think the opposing group has too narrow a view of religious liberty when they oppose including anything other than the narrowest conscience protections in a same-sex marriage bill and say that instead religious objectors should rely on, or try to amend, existing nondiscrimination laws.
November 08, 2013
Legislative Prayer: Podcast from the National Constitution CenterToday I participated in an audio podcast, organized by the National Constitution Center, on this week's legislative-prayer argument in the Supreme Court (Town of Greece v. Galloway). The other participants were Marci Hamilton, Steven Smith, and moderator Jeff Rosen, law professor and the (relatively) new president/CEO of the Center. It was a very enjoyable discussion; read about it and listen to it. Focused as I am these days on threats to the free exercise of religion, I included an argument that special limits on government-sponsored prayer under the Establishment Clause should be matched by special protections for religiously motivated conduct under the Free Exercise Clause.
Swanson on "Patents, Politics, and Abortion"
For someone like me, interested in the intersection of intellectual property and religious thought, this forthcoming book chapter "Patents, Politics, and Abortion" by Kara Swanson (Northeastern) is fascinating. From the abstract:
The politics of life within the patent system are remarkable because of their unremarkability. Usually, patent law is considered in complete isolation from the explosive mixture of medicine, religion, law and politics that have made the legal and social status of abortion controversial in the United States since the antebellum period. The actions of the patent office and the details of patent doctrine have been ignored in contemporary abortion politics, and the patent office has maintained a reputation as a non-political, technical agency. . . .
. . . In Part III, I consider the post-Chakrabarty history of the politics of life within the patent system by looking briefly at two late twentieth-century controversies involving inventions and the politics of life, the "abortion pill," RU-486, and human-animal chimeras. Based on this historic review of the politics of life within the patent system, I argue that (a) that the patent system is deeply implicated in the politics of life in the United States, and (b) the patent office has been remarkably successful in hiding that fact.
Scholars of abortion and bioethics should find this interesting too. A couple of reflections about the relation between intellectual property (IP) and religious/moral perspectives:
First, the presumptions that have dominated in the past 40 or so years are that the Patent Office is neutral and technocratic, and that granting a patent as a property right is the neutral baseline for any kind of new technology (as the Court put it in Chakrabarty, the original genetic-patenting case in 1980, if any category of technology is to be excluded from patentability because of moral concerns, Congress should do so explicitly). Patents on abortion-related inventions like RU-486 have escaped pro-life scrutiny in part because the conservative side of the political spectrum--with which the pro-life movement has been aligned--has been very positive on patents in general, seeing them as simple property rights. (I must add that liberals have generally been pro-patent too: Swanson is right that patents came to be seen as an apolitical good by everyone.) Pushing for limits on patentability in this context might well require conceding that patents are not simple "property" that should be near- absolute in its scope, but rather a limited (though important) property-type entitlement granted to achieve social purposes and subject to social limitations. As I've argued elsewhere, that more limited conception of patents (and IP in general) fits better with Catholic thought concerning the "social mortgage" that exists on property for the good of all, especially the poor and the developing nations.
Second, however, Swanson points out another reason the pro-life movement didn't challenge patents on abortion-related inventions. Although patents (like other IP) are meant to encourage innovation, they do so by giving the patent-holder a (20-year) monopoly. Thus for that term, the patent may well limit broad distribution of the invention. At the very least it can allow opponents to concentrate on just one entity and try to get it to refrain from marketing the invention in a certain area. As Swanson points out, RU-486 opponents were successful in pressuring the European patent-holder to "refus[e] to seek FDA approval or to license any other company to do so through the 1980s."
At any rate, a very interesting piece.
November 07, 2013
Response from Scholars Supporting "Marriage Conscience" Religious Liberty Protection
For several years now, two groups of religious-liberty scholars have been urging state legislatures considering recognizing same-sex marriage to address religious liberty issues explicitly and give meaningful "marriage conscience protection" to religious objectors. (See archive of our letters/memos. One group of us is made up entirely of supporters of same-sex marriage; the other group includes some supporters, some opposed or skeptical, and some undecideds; but we all support meaningful religious-liberty protection.) Now our arguments and proposal have been criticized by another group of five constitutional scholars who wrote last week to Illinois legislators. Dale Carpenter, one of the five, has posted their letter and summarized its arguments at the Volokh Conspiracy. We’ll do a full response to the letter, but that requires more length and detail than a blog post permits. So here we respond to Professor Carpenter’s post and the general arguments of the letter that it reflects.
1. Carpenter’s first assertion, summarizing his group’s letter, is that “recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill,” because the “cases in which such conflicts are said to exist arise entirely from pre-existing antidiscrimination law” and should be handled through that pre-existing law. Let’s begin by making one point clear: our proposal does not aim to deal with conflicts between antidiscrimination law and religious objectors in general. Under our proposal, antidiscrimination law can still require religious individuals and groups in many contexts to serve or employ gays and lesbians who are in same-sex marriages. We protect objectors when they would be forced to facilitate the conduct directly or affirmatively “recognize the marriage”: religious marriage counselors counseling same-sex couples, religious colleges opening married-student housing to same-sex couples, etc. We protect a refusal to facilitate or recognize the union itself, not a refusal to deal with an individual simply because he or she is in such a union.
Carpenter’s group makes a fair point that objections to facilitating same-sex unions predate the recognition of same-sex marriage. But the statement that recognizing same-sex marriage “creates no need to adjust the degree of protection" ignores reality: same-sex marriage does change the picture. Most obviously, it increases the number of potential conflicts. The number of same-sex marriages is accelerating rapidly as more states (especially larger states) are recognizing it. There will be a lot more wedding ceremonies than there were commitment ceremonies. Beyond that, for many religious objectors marriage is a different matter than a non-marital union: marriage for them is a sacrament, and state recognition of same-sex marriage makes antidiscrimination law apply to a matter of profound religious significance. That view should not of course determine how the state defines civil marriage, but neither should the state ignore it in determining the fair scope of protection for conscientious objectors.
Moreover, recognition of same-sex marriage without explicit exemptions will likely weaken the legal strength of religious conscience claims beyond the situation of marriage. This is because of, among other things, what might be called the "Bob Jones effect," named for the fundamentalist college whose federal tax exemption was stripped in the 1970s because it forbade interracial dating by students. The Supreme Court upheld that penalty because it found that "myriad" laws against race discrimination in education, which had few if any exemptions, showed a "firm national policy" that would permit no exception even for a small college that attracted no one but like-minded students. Marriage traditionalists can reasonably fear similar consequences for their beliefs if same-sex marriage—the latest of many steps toward gay/lesbian legal equality—is repeatedly enacted with few or no exemptions. If prohibitions on sexual-orientation discrimination, like those on race discrimination, must have few or no exceptions, then state or federal tax exemptions may eventually be at risk for virtually every evangelical, traditional Catholic, Orthodox Jewish, or Muslim school and social service. Passing same-sex marriage without explicit exemptions can easily send a message that the traditionalist views on sexual morality must be marginalized in every context, not just marriage.
Carpenter’s group says that conflicts should be resolved under pre-existing exemptions from antidiscrimination law, but we are not as sanguine about the adequacy of those exemptions. The state provisions vary greatly, as Carpenter’s post acknowledges; many are unclear and open to interpretation, and some gay-rights proponents will push for the narrowest readings (especially after same-sex marriage is enacted and the religious objectors lose any bargaining power). To take just one example, during Minnesota's same-sex-marriage debate last May, Professor Carpenter wrote in an op-ed that the exemption in the state antidiscrimination law was "among the most expansive in the country," protecting "religious nonprofit associations and schools"; but within a couple of weeks, Minnesota's Department of Human Rights, which enforces the law, issued guidelines asserting that the provision "does not exempt [among other entities] nonprofits ... based on religious beliefs regarding same-sex marriage."
The members of Carpenter’s group say that they support religious liberty but that the remedy for any threats to it is to amend pre-existing laws. We would welcome their support for making pre-existing exemptions more secure. However, their letter to Illinois legislators shows little sympathy to such exemptions for religious organizations outside the immediate context of the wedding: for example, for nonprofit marriage-counseling services or adoption services, even when those services are not publicly funded. The letter objects that our proposal would allow discrimination “in situations far removed from the marriage celebration” (p. 8), which describes situations like marriage counseling, adoption placements, or a religious college’s married-student housing. The letter also states that existing Illinois provisions strike “a careful balance between equality and religious liberty” and have “reasonably adjudicated the very few conflicts that had arisen and that might continue to arise” (pp. 4, 6). But Illinois’ specific statutory protections are narrow and uncertain: for example, as our initial Illinois letter (at 16) describes, one exemption protects a religious organization’s employment of members of its own faith; the other does protect certain preferences by religious organizations in housing, but only preferences for “persons of the same religion,” which does not clearly protect a religious college’s decision to limit married-student housing to opposite-sex married couples.*
Moreover, we know, from first-hand experience, that any proposal to strengthen pre-existing exemptions brings the protest that it would go beyond addressing new problems and would "undo existing law." Carpenter's group says that with respect to religious liberty, traditionalist objectors can do nothing to stop water rushing through a hole in their boat; they have to get a broader agreement to plug every crack.
2. Carpenter's second point from his group’s letter is that even if new provisions are needed, our proposal is too broad. This is certainly fair ground for debate, and we welcome discussion about the proper scope of exemptions, as opposed to the unrealistic claim that same-sex marriage doesn't change anything. Carpenter focuses attention on the most controversial cases, small personal-service businesses and government officials. But we should not lose sight of the cases that ought to be non-controversial: must a nonprofit evangelical marriage-counseling ministry counsel same-sex couples? Must a traditionalist Catholic college open its married-student housing to same-sex couples? Far more often than Carpenter’s group admits, these matters are unclear under the existing state laws that the group says must be the sole vehicle for protection.
With respect to the controversial cases, Carpenter’s statement of our proposal is misleading (and false in saying that we extend exemption to "non-religious objectors"; we do not). Far from exempting "inns, restaurants, and other businesses" broadly, as he suggests, we limit exceptions in the business world to sole proprietors and very small businesses (five or fewer employees) that provide services directly facilitating the wedding or the marriage—wedding photography, marriage counseling—that would violate their religious beliefs. We also deny exemption in cases where the couple would have difficulty finding another service provider; in other words, in the case when a religious objection truly conflicts with a couple’s access to services, our proposal says the couple should prevail. When even a limited exemption like that is rejected, individuals will be driven from their professions, not to ensure that couples have access to services—what couple would seek out a counselor who disapproved of the marriage?—but primarily so the state can express the view that the refusal of service is wrong. In any event, to return to the main point: concerns about exemptions for commercial objectors do not warrant leaving thousands of non-profit religious organizations subject to the uncertain coverage of existing state exemptions.
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
Robin Fretwell Wilson
* UPDATE (Nov. 9, 2013): This post has been amended, at the point in text marked by the asterisk, to delete quotes from previous scholarly articles written by Professors Marshall and Lupu (members of Professor Carpenter's group), and to add the four sentences immediately preceding the asterisk. We acknowledge that Marshall has allowed that some legislative accommodations of religion are constitutional, and that Lupu has more recently expressed openness to some exemptions for religious organizations in a same-sex marriage bill. See, e.g., Lupu and Tuttle, “Same-Sex Family Equality and Religious Freedom,” 5 Northwestern J. of Law & Social Policy 274 (2010). However, as we explain in the added text, the group letter just submitted in Illinois shows little sympathy for protecting religious organizations other than in the narrow context of the wedding celebration itself—where protection is already guaranteed as a minimum requirement of the Constitution.
October 30, 2013
A Counter-Letter on Same-Sex Marriage and Religious Liberty
MOJ readers are of course familiar with the letters and testimony that our two groups of religious-liberty scholars (including MOJers Garnett, Perry, and Berg) have submitted to legislators in various states, arguing for strong religious-liberty protections as the states vote on recognizing same-sex marriage. Now another group of scholars (Dale Carpenter, Andrew Koppelman, Ira Lupu, William Marshall, and Douglas Nejaime) have submitted a letter to Illinois legislators arguing that the protections we've sought there are not necessary. (The link is to Dale Carpenter's posting of their letter, over at the Volokh Conspiracy; as usual at the VC, there's plenty of action in the comments.)
The counter-letter deserves a considered reply, which you can expect sometime soon. Doubtless we'll have some back and forth in the coming weeks.
October 29, 2013
Religious Liberty Arguments in Hawaii Same-Sex Marriage Debate
As in previous states (see archive here), our two groups of religious liberty scholars have submitted letters to legislators in Hawaii, where same-sex marriage is under consideration in a special session this week, arguing for meaningful religious-liberty protections that are absent from the current bills.
Here are the longer-form letter memo and testimony, from scholars who hold differing views on whether to recognize same-sex marriage (the testimony is from an expanded group adding Robert Destro, Marie Failinger, and Michael McConnell). And here are the letters and testimony from another group of scholars who all support same-sex marriage but also support strong religious accommodations.
October 01, 2013
From The Atlantic: "How America's Marriage Crisis Makes Income Inequality So Much Worse"
This will hardly be news to readers interested in the subject matter and concerns of this blog. But it's important to see it emphasized again in a venue like The Atlantic (which indeed first published Charles Murray's earlier findings on it).
In a strange twist, marriage has recently become a capstone for the privileged class. The decline of marriage, to the extent that we're seeing it, is happening almost exclusively among the poor. . . .
The marriage inequality crisis creates a virtuous cycle at the top and a vicious one at the bottom. It pushes educated and non-educated Americans into entirely different worlds. . . .
This is the marriage crisis behind our inequality crisis. It is not complicated. It requires no regressions. It is the simplest math equation is the world. It says: Two is more than one.
September 27, 2013
Robert Christian: "Can Pope Francis Help End the Culture Wars?"
Robert Christian is the editor of the Millennial blog, which is a rising voice among young-adult Catholics, and a fellow with Democrats for Life of America, where he edits and contributes to DFLA's "Everyday Life" blog. Today he writes at the Washington Post's "On Belief" page, on whether the re-sets in tone and priorities suggested by the Pope's recent statements could "help end the culture wars." He writes that the "commitment to all life," the unborn and those vulnerable in other ways,
is partly responsible for [Francis's] call to rebalance church teaching, to move it away from a legalistic focus on a handful of moral teachings, including abortion, at the cost of proclaiming the Gospel and welcoming new faces into the church. . . .
Pope Francis warns, “We have to find a new balance; otherwise even the moral edifice of the church is likely to fall like a house of cards, losing the freshness and fragrance of the Gospel.” This new balance does not entail an abandonment of church teaching on abortion, but a full embrace of the moral and social teachings of the Church, and a recognition that Catholicism is about more than a political agenda or even its understanding of justice in the contemporary world.
I think Robert does an excellent job of reflecting on the priorities the Pope is reemphasizing. It's undeniable, to me, that some of those embroiled in the culture wars have wrongly prioritized other matters over the core of the Gospel. (Of course Christians of many theological and political stripes have done that over the centuries.) Consider Cardinal Burke's recent interview with The Wanderer, where he states that the homosexual-rights movement is "a lie about the most fundamental aspect of our human nature, our human sexuality, which after life itself defines us." [ADDED: HT on the Burke interview: Michael Sean Winters] I can appreciate the importance of complementarity, but ... sexuality is right after life in defining us? When the interviewer asked "Who is Jorge Mario Bergoglio?," the Pope answered, "I am a sinner." It seems Cardinal Burke might answer, "I am a male." I understand that Galatians 3:28--in Christ "there is neither Jew nor Greek, male nor female"--obviously does not eliminate the relevance of sexual nature in all respects. But I don't think Cardinal Burke's response quite reflects the prophetic content of that verse.
Before we are men and women, conservatives or liberals, we are all sinners--redeemed, we hope and pray, by grace. Living mindful of that fact can help us treat each other with respect and charity even when we disagree, or when the other person has erred. In his Second Inaugural Address, Lincoln could conclude with the call to "bind up the nation's wounds' and care for the widow and orphan"--"with malice toward none [and] charity for all"--in significant part because he had just acknowledged that both sides "read the same Bible and pray to the same God"--suggesting that the North had its role in slavery as well.
So yes, I agree, an emphasis like the Pope's on the core of the Gospel--"I am a [redeemed] sinner, serving others out of gratitude"--can help temper the culture wars.
With that said, it's crucial to remember that many people want the Church not just to reprioritize its beliefs on sexuality, but to give them up, under state pressure if that's necessary. Catholic and other traditionalist organizations could spend massive amounts of time and money helping the poor--they do, of course--and some on the other side of the culture wars will still keep pressing to marginalize those organizations by means of regulation, the denial of tax exemption or other general government benefits, and so on. So while, as I see it, traditionalist Christians have gotten their priorities very wrong in many instances, changing those priorities won't make the culture war go away entirely. The other side won't abandon it.