Mirror of Justice

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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

Sunday, September 28, 2014

Article on Pregnancy Discrimination and "Bipartisan Support"

An interesting article in The Week on the subject of pregnancy discrimination, headlined as "The feminist issue that too many women ignore." The articles makes reference to the briefs by both pro-life and pro-choice groups supporting Peggy Young, the plaintiff in the SCT in Young v. United Parcel Service. It quotes the pro-life brief and then adds (speaking presumably about potential legislative efforts down the line, beyond the SCT case):

While some feminists will surely resist working too closely with those who oppose abortion, others might view this as an opportunity to step outside their circles and increase the likelihood of making positive change. As writer and critic Judith Shulevitz puts it in her recent examination of the state of feminism today, getting legislation passed that will help working mothers will require "being willing to make compromises and unlikely alliances to get the necessary votes." By "unlikely" she means those who "fall afoul of Emily's List."

(Cross-posted at Whole Life Democrat)

September 28, 2014 in Berg, Thomas | Permalink

Tuesday, September 23, 2014

Church Signs, Content Discrimination, and Freedom of Assembly: Amicus Brief from CLS and the St. Thomas Religious Liberty Clinic

The Supreme Court this term is hearing Reed v. Town of Gilbert, a church's challenge to a town ordinance that imposes widely varying size and duration requirements on temporary signs with different messages and subject matters. "Political signs" (those supporting candidates or ballot measures) and "ideological signs" (those that simply communicate a noncommercial message) can be much larger and stay up much longer than "temporary directional signs for qualifying events," which announce an event (other than a political one!) and give directions to it. Officials classified Good News Church's signs for its weekly Sunday worship services (held in rented public-school rooms) into this last category. The signs thus could not be placed until 12 hours before the services and had to be removed within one hour afterward.

The UST Law Religious Liberty Appellate Clinic, which I direct, wrote an amicus brief for the Christian Legal Society and several other groups supporting the church's challenge. We argue that the sign ordinance is content-based (discriminating based on the subject matter of the signs) and thus subject to strict scrutiny; we support the plaintiffs' argument that the content-discrimination category applies here even if the town was not shown to be motivated by disagreement with the message of disfavored signs.

We also argue that the disfavored treatment of signs that announce and give information about a noncommercial event conflicts not only with freedom of speech, but with the distinct First Amendment right of freedom of assembly.  This may call to mind for readers John Inazu's important recent book, Liberty's Refuge: The Forgotten Freedom of Assembly, and we rely significantly on the book in this section. We think that the denigration of the value of event announcements in this ordinance really frames nicely John's point that assembly should not be reduced merely to speech (or the other doctrine, lacking an explicit textual pedigree, of "intimate or expressive association"). Here's a bit from that section of the brief:

The Court of Appeals’ holding that speech announcing events has little or no constitutional protection is gravely detrimental to the distinct First Amendment right of freedom of assembly. Because the people have the right not just to speak, but “peaceably to assemble,” U.S. Const. amend. I, messages announcing events and directing people to them cannot be relegated to inferior constitutional status. Substantial restrictions on meeting announcements and directions can severely hamper the practical ability of groups to assemble...

This Court has made clear that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).... Accordingly, the interpretation of free speech principles must give weight to the distinct but related right of assembly.

The press release from CLS is here. Thanks to clinic student (3L) Michael Blissenbach, who did a fine job in contributing to the drafting of the brief. And of course thanks to Kim Colby of CLS, who as many readers may know is one of the nation's very best religious liberty lawyers.

September 23, 2014 in Berg, Thomas | Permalink

Saturday, September 20, 2014

The Economist on the Pro-Life Brief Supporting Pregnant Women

The Economist's Democracy in America column notes the Supreme Court brief from 23 pro-life organizations (my previous post is here) supporting pregnancy-discrimination plaintiffs:

ACTIVISTS on warring sides of the abortion debate rarely take the same position when it comes to Supreme Court cases involving women’s rights. But pro-choicers and pro-lifers have found common cause in Young v United Parcel Service, a pregnancy discrimination case the justices will take up on December 3rd. . . .

For the liberal women’s rights organisations, the question is one of gender equality. Workers like Ms Young, they say, have a legal right to the same kinds of accommodations that companies offer to employees unaffected by a pregnancy. For pro-life groups, there is an added dimension: women facing inflexible bosses tend to consider abortion. The amicus brief from 23 pro-life organisations quotes Senator Harrison Williams, an architect of the PDA who died in 2001. “One of our basic purposes in introducing this bill,” he had said, “is to prevent the tragedy of needless, and unwanted abortions forced upon a woman because she cannot afford to leave her job without pay to carry out the full term of her pregnancy.”

September 20, 2014 in Berg, Thomas | Permalink

Friday, September 12, 2014

Amicus Brief of Pro-Life Organizations Supporting Strong Protection for Pregnant Workers from Discrimination

(from Tom Berg:) I'm very pleased to tell others about an amicus curiae brief, filed in the U.S. Supreme Court yesterday by 23 pro-life organizations in Young v. United Parcel Service, an important case involving the Pregnancy Discrimination Act of 1978 (the PDA).  The brief, which supports the pregnant employee who filed suit against UPS, is by pro-life organizations from across the political spectrum, from Concerned Women for America and the Southern Baptists to Feminists for Nonviolent Choices and Democrats for Life.  Here are a couple of news releases, from St. Thomas Law and from the Democrats for Life (on whose board I sit), each summarizing the case (and also linking to the brief).

The filing of the brief makes important statements that, I think, are noteworthy in our society polarized over the “life” issue and how to address it.  In this, a variety of pro-life groups with different missions, who disagree on other things, have come together to emphasize that supporting pregnant women is a fundamentally pro-life position.  I suspect that, in our polarized atmosphere, some people may be surprised that a bunch of pro-life groups have filed to support working women—so spread the news!

I worked along with several other counsel, including my colleague Teresa Collett, to organize and draft the brief.  And yet another St. Thomas Law colleague, MOJ's own Lisa Schiltz, made important contributions to the brief as well.  (Go Tommies!)

The case involves Peggy Young, a driver for UPS who became pregnant and, based on the doctor’s note concerning lifting restrictions, sought to be switched to “light duty” work for the remaining few months of her pregnancy.  UPS had provided such an accommodation for several significant categories of employees, including those injured on the job, those with disabilities, and those who had lost their commercial driving license for various medical reasons—but it refused to accommodate Young.  She was forced to take an unpaid leave and lost her employer-provided health insurance for several months.  Young sued under the PDA, which requires that pregnant women be treated the same as other employees “similar in their ability or inability to work.”  Although UPS had made the accommodations mentioned above, the lower courts ruled against Young because there were other categories of employees UPS had not accommodated (e.g. off-the-job injuries); essentially, the court said that pregnancy was not discriminated against if it was treated no worse than those and was not ”singled out” for denial.  Young is seeking reversal in the Supreme Court.

The case raises an important issue concerning the effectiveness of the PDA’s protection for pregnant employees, since many employers make accommodations for some but not all employees with physical limitations.  The pro-life organizations’ brief argues that pregnancy should be treated as well as conditions the employer deems important enough to accommodate, not as poorly as conditions the employer refuses to accommodate.  The brief points to the background of the PDA, which had support in 1978 from pro-life groups and pro-life members of Congress.  Their rationale was that protecting pregnant women from discrimination reduced pressure on economically vulnerable women to abort their children, and strengthens the fundamental right to bear children and raise a family.  The brief makes those arguments as well.

Counsel of record are Carrie Severino and Jonathan Keim of the Judicial Education Project (also an amicus).

Cross-posted (with minor changes) at Whole Life Democrat

September 12, 2014 in Berg, Thomas | Permalink

Tuesday, July 29, 2014

Frum on Ryan's Anti-Poverty Proposal in a Time of "Pervasive Economic Insecurity"

David Frum, the at The Atlantic, joins others in welcoming Paul Ryan's anti-poverty proposals as an important step in returning Republican political leaders to serious discussion about how to deal with poverty. But Frum thinks the compassionate conservatism of the early Bush II years--which Ryan's proposal so far largely resurrects--won't be adequate for today's "more difficult [economic] circumstances," in which long-lasting unemployment is less attributable to bad personal decisions and social environments than it was, and more attributable to broad structural features of the economy:

In 1999-2000, it seemed realistic to draw a sharp line of distinction between the vast majority of adults willing and able to work full-time—and thereby earn a living somewhere north of the poverty line—and the small minority of adults whose bad choices or bad situation rendered them dependent on public assistance. But for half a decade now, that distinction has looked blurry. The specific problem of poverty among those who don’t work full-time is no longer so easily separated from the broader problem of pervasive economic insecurity among those who do.

Frum makes several suggestions, in the vein of Douthat/Salaam "reform conservatism," for how conservatives can compete in the upcoming policy debates. (Among other things, support the earned income tax credit and mother's allowances; oppose minimum-wage raises, universal pre-K education, and immigration reforms that would keep the market for labor soft.)

July 29, 2014 in Berg, Thomas | Permalink

Saturday, July 26, 2014

One Response to Michael about Blaine Amendments

Michael, you raise a good question about whether Blaine Amendments might be a "blessing in disguise" because they--albeit "unintentionally"--"shield many primary and secondary schools" from the choice to "capitulate to the secular orthodoxy or ween yourself from the government teat."

These are hard questions for schools. In a paper for a conference in Rome a few years ago, I presented various considerations, including the possibility that "withholding state financing to religious schools can affect their integrity and vitality as much or more as providing funds with conditions and controls attached":

When religious schools are denied financing while state [and secular private] schools receive it, parents face powerful financial disincentives against choosing religious schools for their children. To overcome that disadvantage, religious schools may have to change their programs to attract more donations, more applications, or more full-tuition-paying students instead of low-income students—all of which may compromise the school’s mission to teach the faith or educate the poor. Or schools may have to close altogether. Early in 2009, American newspapers reported that four Catholic secondary schools in New York City had been forced by fiscal necessity to join the state system as so-called charter schools. The change would permit them to receive funds but would require them to eliminate their religious components entirely, not just in selected classes as Supreme Court decisions like Lemon had required.

So I have a few reactions to your question:

1. To preserve their ability to choose their mission, Catholics and other religious groups should certainly try to increase their schools' financial independence so they are less exposed to the difficult choice of taking aid with strings or losing equal aid.

2. Nevertheless, whether the schools' integrity and vitality will be more threatened by taking aid or losing it depends on the situation, and on the kind of strings. Therefore, parents and schools should have the choice, even if the state has structured it as less than ideal. Blaine Amendments wrongly take the choice away from them.

3. If the societal opposition to Catholic or other religious doctrines and policies is so strong, it may not stop at putting strings on funding. Catholic and evangelical schools that violate antidiscrimination norms may face damages awards and fines even if they don't receive funding. Catholic schools have to figure out how to respond to that problem, entirely apart from Blaine Amendments.

(This sets aside, of course, the argument that secular regulation, such as nondiscrimination law, may sometimes actually push a school toward a better position even under Catholic teaching properly understood--the discrimination may be "unjust." But obviously how to understand Catholic teaching is for the school and religious leaders to decide, not the state.)

July 26, 2014 in Berg, Thomas | Permalink

Winters on Paul Ryan's Anti-Poverty Proposal

Michael Sean Winters has an excellent post welcoming Paul Ryan's proposal as a potential return by Republicans to serious discussions about how to assist and empower the poor. Michael Sean closes

by recalling the talk delivered by Bishop Robert McElory at John Carr’s Initiative on Catholic Social Thought in Public Life at Georgetown, in which +McElroy called for Catholics to become “insurgents” within their own parties. Ryan did that yesterday. I think he has further to go: I do not see how anyone committed to Catholic social teaching can fail to see the need to raise the minimum wage, for example. But, Ryan deserves great praise for taking on the issue and for putting forward ideas and for inviting criticism and continued debate. ... Shame on all of us if we do not seize this moment to remind the American Christian community that Matthew 25 says nothing about a rising middle class, and that we welcome anyone, but most especially Cong. Ryan, to the discussion our nation has for too long avoided: How do we continue the fight against poverty in ways that will actually help the poor?

July 26, 2014 in Berg, Thomas | Permalink