Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, May 20, 2016

Methodists Withdraw from Religious Pro-Abortion-Rights Group

This is quite a striking vote, cutting against the trend in which mainline Protestant denominations over the years became  increasingly allied, if only in their policy offices, with the broadest versions of the right to abort.

     Evangelicals celebrated the United Methodist Church’s decision yesterday to leave a pro-choice advocacy group it co-founded 43 years before. 

     At its general conference, delegates voted 425-268 to withdraw from the Religious Coalition for Reproductive Choice (RCRC), an interfaith organization whose broad support extends to late-term and sex-selective abortions—a practice that the church’s social principles “unconditionally reject.”

This is one more data point in the emerging pattern that the ideological middle of the country--which Methodists tend to track--will not accept hard-line pro-abortion-rights positions, even as it increasingly accepts the progressive position on the other major culture war issue of gay rights. The two are very different, and their paths in public opinion charts will increasingly diverge.

May 20, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Sunday, May 8, 2016

Another Book Worth Noting: Stark on Anti-Catholic History

John Inazu's Confident Pluralism, noted by Rick, is a book with an important thesis--hope it gets a lot of attention. 

Another book worth checking out, for which I've just seen a notice, is Rodney Stark's Bearing False Witness: Debunking Centuries of Anti-Catholic History. Stark is an interesting and readable sociologist and historian of religion, who always makes important and generally correct points in his books, even if (in my experience) he may oversimplify or overstate things in places.

May 8, 2016 in Berg, Thomas, Books, Religion | Permalink

Thursday, May 5, 2016

"Partly Acculturated Religious Activity: A Case for Accommodating Religious Non-Profits"

I've posted the above-titled article on SSRN. It's forthcoming in the Notre Dame Law Review, from the excellent symposium that the Review and Rick organized on the 50th anniversary of the Declaration on Religious Freedom. My contribution doesn't mention the Declaration. But it follows in its spirit, since it deals with a crucial question about the ability of religious organizations to have freedom in their public, not just their insular private, activity. The article responds to the claim, growing in strength in the courts and academia, that there should be no legal accommodation for religious organizations in activities where they employ or serve persons outside the faith. (That, of course, was a key premise of the narrow original exception from the HHS contraception mandate.)

I present a defense of a prima facie duty to accommodate what I call "partly acculturated" religious activities, which are "'acculturated in that they reach out to the broader society to provide services of general civic value, but unacculturated in that some of their doctrines and practices clash with dominant secular values [and therefore claim religious freedom protection]." From the abstract:

The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity. Among other things, I argue, relying on work in sociology of religion, that refusing accommodation to partly acculturated activity risks losing the distinctive vigor that such organizations offer in providing services to society: their countercultural positions tend to create a sense of identity and commitment, while their acculturation means they apply that identity to serve society rather than withdraw from it.

Accommodating partially acculturated activity does present distinctive challenges because of effects on non-adherents. Part III proposes addressing those, and drawing lines concerning accommodation, by relying on concepts of:(1) notice to employees and clients concerning the organization’s religious identity, and (2) alternative sources of receiving the services or opportunities in question.

And from the article's Conclusion:

Claims for the protection of partly acculturated religious activity present challenges and tensions.  The scope of protection must of course take account of effects that these activities have on non-adherents, whether employees or clients.  But refusing such protection has serious costs.  The opposition to any accommodations for religious activity that affect non-adherents has the effect—and very possibly the aim—of marginalizing organizations that straddle the line between their own members and the broader society.  It will force these organizations to deal only with their own adherents, and play less and less of a role in the broader society, if they want to adhere to their doctrinal beliefs.  For all the reasons above, this would be a bad development: for religious equality, for the vigor of our educational and social service sectors, and for our ability to engage with each other across lines of disagreement.

May 5, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, April 27, 2016

Trinity Lutheran Amicus Brief: Religious Persons are Equal Citizens

As many readers know, the Supreme Court is currently considering Trinity Lutheran Church v. Pauley, a case about discrimination against churches in state funding programs. The Religious Liberty Appellate Clinic at St. Thomas, which I supervise, filed an amicus brief on behalf of several church-related groups and other religious organizations.

The case involves exclusion of a church from a Missouri state program that provides funds to non-profit institutions to help them resurface their playgrounds using rubber from recycled tires. Trinity Lutheran Church, which operates a preschool and day-care center, applied for funds because its current playground surface posed dangers to children who fell while playing. The church would have qualified for a grant, but the state excluded it solely because it was a church. Trinity argues that this discrimination against religion violates the Free Exercise Clause.

Here is a passage from our brief that gives the gist of its argument: 

By its exclusion, the state has denied equal treatment with respect to one of government’s core functions: protection of the safety and health of persons within its jurisdiction. In a real sense, such an exclusion treats religious persons as less than equal citizens – as it would if the state were to deny other safety benefits such as police or fire protection. The children who attend petitioner’s preschool and daycare are entitled to the same eligibility for state safety benefits asare children who attend nonreligious institutions.... When a Lutheran child trips or falls on an “unforgiving” surface, her head injury is no less serious than if she attended a nonreligious private school. 

Luke Kane, J.D. class of 2018, did excellent drafting work on the brief.


April 27, 2016 in Berg, Thomas, Current Affairs | Permalink

Thursday, March 31, 2016

Survey: U.S. Christians Face Intolerance, and Complain Too Much About It

An interesting survey, with implications for how Christians speak in public discourse and in particular how they present claims of religious liberty:

A growing number of Americans believe religious liberty is on the decline and that Christians face growing intolerance in the United States.

They also say American Christians complain too much. In agreement: two out of five evangelicals, both when measured by beliefs and by self-identity.

March 31, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, March 16, 2016

Assisted Suicide Bill Tabled in MN

A bill in Minnesota to legalized suicide was tabled by its chief sponsor today after a hearing at which many opponents showed up to warn of dangers from the bill. From the Minneapolis Star-Tribune:

      Another opponent, Kathy Ware, said the legislation sends the wrong message about people who are disabled and depend on others for care. She has a 21-year-old son, Kylen, who is mentally impaired and has cerebral palsy and epilepsy.

      Ware said people seeking life-ending medication in Oregon have cited conditions shared by disabled people, such as being less able to engage in activities, losing dignity or losing control of bodily functions. The last reason particularly upset her....

      As evening closed in, Eaton acknowledged that the matter was too complicated, with too many open questions, to be resolved that day.

     “I don’t want any kind of vote,” she told fellow senators. “We’re not ready for it … it’s abundantly clear.”

Minnesota Citizens Concerned for Life encouraged their members to show up. Charlie Camosy, my fellow board member at Democrats for Life of America, wrote a terrific Star-Tribune op-ed encouraging liberals in particular to oppose the bill, calling assisted suicide "an idea that loses its appeal as it becomes more tangible."

(HT: St. Thomas Law alum Michael Blissenbach)

March 16, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, February 24, 2016

"In the long run ..." (cont'd)

I agree, Marc, Christians must be optimistic "over the truly long run." But the question is, is that only so in the long run in which we are all dead (and resurrected)?

As an ironist, I actually think there's room for optimism before that. (We might be able to open our eyes, see incongruities, and go in a different direction.) But I don't see how a tragedian can think so.

February 24, 2016 in Berg, Thomas, Current Affairs | Permalink

Optimism, Tragedy, and Irony on Religious Freedom

Marc: I wonder how your commendation of Justice Scalia's "optimism" on the willingness of the majority to make religious accommodations ("in the long run, optimism is not so bad a bet") fits with the "tragic" approach to religious freedom. In our back and forth a few months ago, you argued that tragedy is the most accurate outlook  and that even my "ironic" outlook was too sunny for today's religious-freedom clashes.

February 24, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, February 17, 2016

"Antonin Scalia: Devout Christian, Worldly Judge"

Some reflections  of mine on Justice Scalia--his faith and judicial philosophy--at Christianity Today. Admiring, with some criticism. The final paragraph:

In end, however, Justice Scalia was a prophet, like many of the great dissenters in the Court’s history (he will rank with Oliver Wendell Holmes among the greatest). And prophecy involves ringing tones and stark terms; it is hard to combine those with qualifiers that charitably give the other side every benefit of the doubt. Justice Scalia lost many battles on the Court, and some of his positions will become even less popular over time. But many of his words will ring with prophetic power for generations to come.

February 17, 2016 in Berg, Thomas, Current Affairs | Permalink

Sunday, February 14, 2016

Misstating Scalia: One Clear Instance (This One on Evolution)

There will be reams written about Justice Scalia. You could disagree with him (for the record, I have a fair number of times). But the main NPR story, picked up by lots of other sites, has a discrete but very clear error about his record that ought to be corrected before it becomes established. Nina Totenberg writes there:

On questions of separation of church and state, Scalia was a consistent voice for accommodation between the two, and against erecting a high wall of separation. When the court, by a 7-to-2 vote, struck down a Louisiana law that mandated the teaching of creationism in school if evolution is taught, Scalia was dismissive of evolution, calling it merely a "guess, and a very bad guess at that." [Referring to Scalia's dissent in Edwards v. Aguillard]

Scalia did not call evolution "a very bad guess." That was his characterization of what the Louisiana legislators who supported the balanced-treatment law believed. He recounted their belief in order to argue that they had "secular purposes" for supporting the law  (thus satisfying prong one of the Lemon v. Kurtzman test), not that their purposes reflected accurate beliefs. The paragraph containing the phrase "bad guess" is one of several paragraphs chock full of cites to the legislators' statements in the legislative record. Here is how Scalia introduced the paragraphs, followed by the relevant paragraph itself (emphases in original):

Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point. Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is crucial is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.

Senator Keith and his witnesses testified essentially as set forth in the following numbered paragraphs: ....

(2) The body of scientific evidence supporting creation science is as strong as that supporting evolution. In fact, it may be stronger. Id. at E-214 (Young statement); id. at E-310 (Sen. Keith); id. at E-416 (Sen. Keith); 2 id. at E-492 (Sen. Keith). The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific "fact," since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or "guess." 1 id. at E-20 - E-21 (Morris); id. at E-85 (Ward); id. at E-100 (Reiboldt); id. at E-328 - E-329 (Boudreaux); 2 id. at E-506 (Boudreaux). It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a "myth." 1 id. at E-85 (Ward); id. at E-92 - E-93 (Kalivoda); id. at E-95 - E-97 (Sen. Keith); id. at E-154 (Boudreaux paper); id. at E-329 (Boudreaux); id. at E-453 (Sen. Keith); 2 id. at E-505 - E-506 (Boudreaux); id. at E-516 (Young).

It couldn't be clearer that Scalia was describing the legislators' views about evolution, not asserting his own.

One website had to correct this same misstatement a few months ago. NPR should correct it now.


February 14, 2016 in Berg, Thomas, Current Affairs | Permalink