Monday, June 26, 2017
Thanks to Rick and Marc for the good additional thoughts on Trinity Lutheran.
Rick rightly says that the fact that church daycare admitted students of different faiths was not relevant to the Court's free exercise holding. It makes little sense as a matter of constitutional doctrine to say that the church has constitutional status of religious equality but loses that status as a constitutional matter if it does what a church does, like choose members or employees based on its faith. On the other hand, I think it would get a little trickier (under precedent, that is) if the state adopted a regulation saying that all recipients of the funding must obey rules of nondiscrimination based on religion. The Court in Christian Legal Society v. Martinez treated that as a neutral, generally applicable rule and upheld it. Now, Martinez was a terrible decision--among other things because so-called "religious discrimination" by a religious group is simply an act defining the group around its mission in the way that all mission-oriented groups do. That reality is not changed merely because a state passes a regulation calling it impermissible discrimination. Nevertheless Martinez is out there and--like other regulatory conditions on access to benefits--will probably be the major sort of issue going forward, as I suggested in part 2 of my first post.
Marc asks why the arguments about the animus behind Blaine Amendments didn't figure in the Trinity opinion. One answer is that the arguments were not very strong concerning Missouri Article I, section 7, the exclusion of churches, the provision to which the state pointed. Exclusion of churches from funding predates the Catholic-Protestant controversies (including Blaine) by decades--unlike exclusion of religious schooling, which was intimately bound up with mid-19th-century anti-Catholicism and Protestant-oriented public school policies. Moreover, claims of "animus" (and similar claims like "gerrymandering" or "intentional targeting") end up being stronger or weaker according to the degree of disproportionate effect on the allegedly targeted group. (Say what you want about the Trump travel ban, its restriction falls almost entirely on Muslims; no one has ever claimed Trump's anti-Muslim campaign statements would invalidate the order in the absence of this strong discriminatory effect.) Missouri's exclusion of churches may have been enacted during the anti-Catholic period around the Blaine Amendment, but it hit Protestants too because, well, they have churches--while the exclusion of K-12 schools (especially of "sectarian" schools) hit almost solely Catholics and very few Protestants. As such, the Blaine/animus arguments did not resonate particularly well in Trinity and were a minor part of the church's briefing. What resonated far more was the simple wrongness of disqualifying a church, whose playground serves kids whose interests matter as much as any other kids.' But I suspect that Blaine arguments will remain central in cases like Douglas County (see their amicus brief here) from Colorado, whose 1876 provision focused on "sectarian" schools. (I assume Douglas County will be GVRed, the Colorado courts on remand will continue to reject the Blaine and other arguments, and they'll all come back to the Supreme Court in a year or two.)
The Court has ruled, 7-2, that the state of Missouri violated the Free Exercise Clause when it disqualified Trinity Lutheran Church, because it was a church, from a general program under which it could have applied to receive state funds to purchase recycled tires and resurface its playground. The Court held that "[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.... [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."
A few initial thoughts:
1. It's a strong win for equal participation of religion, and free religious choice, in government benefits. For one thing, this is the first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding. Rosenberger (1995) involved a university program of funding student organizations to engage in speech; the Court there held that the particular program created a limited public forum for speech, from which religious viewpoints could not be excluded. The Court has refused--and still does--to treat government funding programs for substantive policy purposes (education scholarships, K-12 vouchers, etc.) as creating forums for speech. So this case, relying on the Free Exercise Clause, is an important step in preventing states from singling out religious schools for exclusion from school-choice programs. Most previous decisions had merely allowed equal inclusion of religious entities/persons; Trinity requires it.
It's also strong because the vote is 7-2 and includes Kagan and Breyer (although the latter concurred in the judgment only). The once-dominant strict separationist position that barred aid broadly to religious organizations, especially to houses of worship, is represented only by Sotomayor and Ginsburg. Trinity gives further confirmation of the sea change that has happened in aid cases over the last 30 years: a strong tide away from no-aid separationism and toward equal participation in aid programs--which I think, on the whole, also serves the values of choice and freedom in matters of religion.
Finally, the majority narrowly reads Locke v. Davey (2004), which approved (7-2 the other way!) the exclusion of "devotional theology" students from a broad program of state-funded college scholarships. The broad readings of Davey--that denial of funding is simply not a burden on religion--are now decisively rejected. Instead, the Court emphasized that the denial there was based on a particular use of funds (for pursuing a degree in devotional theology) and that Davey had many ways of including religious elements in his state-funded education: he "could use his scholarship to attend a religious college," includnig a "pervasively religious" college, "and take devotional theology courses there," as long as he didn't pursue a major. Davey might now be narrowed to its facts; it may only involve exclusions of clergy education (which the Court discussed a lot in the Davey opinion); at the very least it is a much smaller obstacle now to suits challenging the exclusion of religious institutions or their students from generally available aid programs.
2. In important ways, the state-religion issues have bypassed the aid cases. It's important that there is now such a strong consensus against broad exclusions of religious institutions from government aid. But since about 2010, the action in religious liberty cases has shifted to conflicts between government regulation and religious conscience or identity, as exemplified in the cases over same-sex marriage (cert granted today in the Masterpiece Cakeshop case), the Obama HHS contraception mandate, and exclusions of student religious groups that requires standards of belief or conduct for their leaders (CLS v. Martinez, 2010). If religious groups or individuals can participate in benefit programs on equal terms, but those terms regularly include general conditions that conflict with their religious convictions or identity, then not much has changed in practice. So the location of the fights between traditionalist religious organizations and their more secular, separationist, or progressive counterparts has shifted to another part of the battlefield. Trinity has something to say about those fights to the extent they involve government benefits: the decisions rests on the proposition that "the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,'” meaning that application of, say, nondiscrimination laws to deny a religious organization benefits (like tax-exempt status) does create a free exercise burden. But the main questions in those fights--such as whether the government's regulation is generally applicable or (if RFRA is involved) serves a "compelling interest"--are different from those in Trinity.
3. The decision is strong, but it scope is uncertain. Trinity says that the state cannot deny aid on the ground of the recipient's religious status, character, or identity; the remaining question is whether it can deny aid on the ground that it will be used for religious purposes (this is the ground of some of the state exclusions, although not others). If religious uses can still be singled out for exclusion, then states will still be able to deny K-12 vouchers to religious education, since a voucher inevitably covers the religious element of schooling.
Trinity leaves this question open. Footnote 3 in the majority opinion expressly does so. Justices Thomas and Gorsuch did not join that footnote, so it reflects only four votes rather than six. But Justice Breyer, in concurring in the judgment, also said he was deciding only the question of exclusion from public health and safety benefits and was "leav[ing questions concerning] other kinds of public benefits for another day." (And he thinks that including religious schools in K-12 vouchers actually is forbidden; see his dissent in Zelman (2002).) Plus the two dissenters, Sotomayor and Ginsburg, presumably will not vote to extend Trinity to forbid exclusions based on religious use rather than religious status.
That leaves Thomas and Gorsuch, who each wrote concurrences (and joined each other's) suggesting that they would strike down the singling out of religious uses for exclusion. Thomas noted, approvingly, that the majority opinion seemed to confine Locke v. Davey to the very narrow context of "ministerial training." Gorsuch likewise suggests Davey is limited to ministerial training, but his opinion is more extensive and, like other separate opinions he wrote this term, announces he will make his intellectual and rhetorical marks on the Court:
[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? ... Often enough the same facts can be described both ways....
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward belief (or status).... I don’t see why it should matter
whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.
Thomas and Gorsuch are only two votes, so the question whether states can single out religious uses for exclusion remains open. But Trinity nevertheless sends a clear signal: the Court will treat exclusions of religion from general benefits program with far more skepticism than the deference given in Davey. And if it takes the next step, striking down exclusions of religious uses, Gorsuch's attack on the status-conduct distinction will provide at least a section of the road map.
Thursday, June 8, 2017
Professor Kathleen Sullivan once wrote that the First Amendment's provisions on religious freedom and equality reflect "a substantive recognition that there is more than one path to heaven and not as many as once thought to hell." To which Michael McConnell responded: "That is not the disestablishment of religion. It is the establishment of Unitarian-Universalism." (From The Bill of Rights in the Modern State 124 n.50 (U. Chicago Press 1992).
That phrase applies to Bernie Sanders' criticism of Russell Vought, nominee for deputy director of the Office of Management and Budget, for having posted online statements that Muslims "stand condemned" and "do not know God because they have rejected Jesus Christ his Son." From Huff Po:
Such a statement is “indefensible, it is hateful and Islamophobic, and an insult to over a billion Muslims throughout the world,” Sanders told the room. He asked Vought, who sat facing him, if he thinks his past comments are Islamophobic.
“Absolutely not,” replied Vought, a former vice president of the conservative Heritage Action for America. “I’m a Christian, and I believe in a Christian set of principles based on my faith. That post … was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation.”
Sanders interjected, “Do you believe that people in the Muslim religion stand condemned?” ...
“Senator, I’m a Christian ... ,” Vought began again.
“I understand that you are a Christian!” Sanders shouted. “There are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?”
Vought said he respects all people and repeated that he wrote his post based on being a Christian. That was it for Sanders.
“I would simply say, Mr. Chairman, that this nominee is really not someone who is what this country is supposed to be about,” Sanders said, gathering up his papers. “I will vote no.”
Believing that one's religion is the only way to God is quite common and surely should not in itself disqualify someone from office. Making that alone the basis for disqualification violates the principles of the Free Exercise Clause, the Religious Test Clause (for federal offices like those in OMB), and the Establishment Clause--by, as McConnell pointed out, establishing universalism as the only permissible religious opinion for federal officials.
(As I understand the context of Vought's views, he was defending Wheaton College's decision to fire Larycia Hawkins, a professor, for stating that Muslims "worship the same God" as Christians do. In that context Vought, a Wheaton alum, argued that the college could fire her because one cannot worship the same God--not even deficiently--without approaching God through Christ. My own views on that question, expressed here on MOJ, are almost certainly closer to Prof. Hawkins's than to Mr. Vought's. But the issue is not which view of God and salvation is theologically accurate; it is whether Vought should be disqualified from this office for his view.)
Religious beliefs criticizing or condemning other faiths are relevant in some cases. It would be relevant if Vought had written that Muslims as a group cannot be trusted as citizens because of their religion (claims we unfortunately see all too often). But that form of criticism/condemnation concerns civil status and participation, not religious salvation. The civil equality of religions under the First Amendment does depend upon officials avoiding blanket statements that members of a faith cannot be trusted as citizens, because it's short step from such statements to treating people unequally in civil matters. (Probably a short enough step to justify voting against any nominee who wrote that Muslims can't be trusted.) But Vought said that Muslim citizens are entitled to equal respect; he made clear, in his post and his attempts to answer Sanders, that he was speaking about theological not civic matters--about the nature of God, worship, and the way to salvation. And the First Amendment rests upon bracketing such theological disputes, neither punishing nor favoring people for their varying views. Without such bracketing, those with non-pluralistic beliefs on ultimate matters will themselves face civil restrictions and discrimination. A belief that another person is condemned in an ultimate sense might lead one to mistreat or disrespect them in civic matters, but surely not necessarily so. People with such non-pluralistic theological beliefs live and work with others respectfully day after day in myriad settings (partly because they believe that it is not a matter of comparative merit--that all, even nominal Christians, are condemned in an ultimate sense unless they rely on Christ).
If the nominee is to be working in a field where his or her attitude toward another faith is relevant, even a publicly expressed belief about ultimate matters could well interfere with performing the job. You certainly could vote against confirming an ambassador to Saudi Arabia who expressed Vought's view about Muslims and salvation. But unless I greatly misunderstand things, beliefs about ultimate salvation are irrelevant to ability to do the work of the OMB. Thus to vote against someone for OMB is simply a penalty on his belief, a bare religious test for a federal office, and a statement that universalism is the orthodox view on religious salvation.
Fear and prejudice toward Muslims is a significant problem in our country. But the resistance to it should take the form of guaranteeing civic equality, and countering true hate, not imposing disabilities solely for views about theological matters. Belief that a religion is false, and cannot lead one to God or ultimate salvation, can coexist with respect for the equal dignity of its members. If we assume that the two cannot coexist, we will start reinjecting the government into controversies about ultimate matters that our religious-freedom tradition has wisely sought to avoid.
Tuesday, May 9, 2017
On May 16, I'll be one of the panelists at an event on Fordham's Manhattan (Lincoln Center) campus, entitled "And Justice for All? Religious Liberty in a Pluralistic World." My terrific co-panelists are Sr. Carol Keehan, executive director of the Catholic Health Association; Asma Uddin, of the Center on Islam and Religious Freedom; Ani Sarkissian, professor at Michigan State specializing in global issues of religion, politics, and religious freedom; and moderator Vince Rougeau of Boston College. The sponsor is Fordham's Center for Religion and Culture. If you're in NYC, come to Lincoln Center from 6-8 p.m. for a symphony of contrasting and complementing themes!
Thursday, May 4, 2017
Sunday, February 19, 2017
Here's a news release concerning the latest brief filed by the Religious Liberty Appellate Clinic that I supervise at St. Thomas. It's an amicus curiae brief in Sterling v. United States, a cert petition involving the application of RFRA in the military. The petitioner, Marine LCpl Monifa Sterling, "was court-martialed for, among other things, objecting to a superior’s order to remove from her work station three small signs displaying a Bible verse." (It's Isaiah 54:17: "No weapon formed against me shall prosper.") Whether or not LCpl Sterling should ultimately win her case, the Court of Appeals for the Armed Forces wrongly cut off her claims at the threshold, making some bad errors in holding that the order to remove the verses had not "substantially burdened" her religious exercise. As the news item explains:
The courts held that Sterling had not been burdened because she had not shown that the order violated any religious tenet that she display signs, because she had not given clear notice that the signs were religious, and because she had not asked for a religious accommodation through the military’s administrative processes.
The certiorari petition and the St. Thomas clinic’s amicus brief argue that all these grounds for denying RFRA’s application are inconsistent with the statute and precedents. Moreover, they argue, the Supreme Court must review the decision because these grounds would broadly restrict the rights of military personnel—Sikh, Jewish, Christian, and others—to follow their religious practices in the military when it would not undercut combat-readiness or good order.
“The [military courts’] narrow conception of burden,” the clinic’s amicus brief states, “wrongly rejects claims at the threshold and neuters RFRA’s requirement—equally applicable in the military—that substantial restrictions on religious activity must be justified by compelling governmental interests.”
... The organizations joining the brief include several religious denominations; the National Association of Evangelicals; the Christian Legal Society (co-counsel); and the Chaplain Alliance for Religious Liberty, which represents religious organizations certifying 2,600 military chaplains, about 50 percent of those currently serving in the armed forces.
My student Andrew Hanson, class of 2018, did a great job doing much of the drafting on this brief.
Although the odds are always long on a cert petition, keep an eye out for this case. The petition was filed by Paul Clement; there are several other amicus briefs in support; and the justices ordered the government to filed a response after it initially waived responding.
Sunday, November 13, 2016
That's the title of a symposium this Tuesday, November 15, organized by the Religious Freedom Project (RFP) of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. A number of social scientists will present their work on the relation of religious freedom to the domestic and international common good. As a legal scholar, I will join the opening panel and present some suggestions on how these findings might relate to legal doctrine, and how doctrinal questions in turn might suggest further research emphases.
Here's a bit of the symposium description:
Our symposium will explore the following: To what extent is religious liberty critical for human flourishing? When and how does it contribute to economic prosperity, democratization, and peace? What challenges face religious communities living under repressive governments or hostile social forces? How is the persecution of religion related to other infringements of basic human rights? What is the relationship between religious freedom and violent religious extremism, and is there a role for religious freedom in efforts to undermine radicalization and counter violent religious extremism and terrorism over the long term?
Any readers who are inside or near the Beltway--this should be a really interesting and enlightening day of presentations.
Wednesday, November 9, 2016
A couple of days before the election, The Gospel Coalition, a leading evangelical website, did a story comparing the prospects for religious liberty under Clinton and Trump. I was interviewed, and I emphasized the likely "direct" religious-liberty threats to conservative religions that a Clinton administration would have posed; then I referred to problems posed by Trump. Those included direct threats to Muslims, but also this "indirect" problem even for white evangelicals' religious liberty, that is, in the long-term:
“Part of the answer has to be that evangelicals act in a way that maintains the kind of moral credibility that allows you to witness for religious freedom,” Berg said. “It’s going to be very interesting to see how the next generation proceeds and how they renew the witness. It certainly needs to be renewed, given how many evangelical leaders have seemed willing to minimize Trump's character problems just because he claims he'll protect religious liberty.”
Despite their efforts to distinguish Trump's many bad words and deeds from his stated policy positions on issues like religious freedom, many white evangelicals have risked their moral credibility by effectively minimizing his narcissism, crudity and meanness, and ethnic and sexual chauvinism. And in an increasingly hostile society long-term, conservative evangelicals will need moral credibility to strengthen their claims for religious freedom.
Now those who've endorsed him are effectively tied to his statements not just for a few months' campaign, but for a four-year term in office. And the stakes are high, especially for the future of evangelicalism. White evangelicals went for Trump 81 to 16 percent (up somewhat from the numbers for Romney and McCain, who were quite different candidates in moral character). Meanwhile, young voters--millennials--went disproportionately (54 percent) for Clinton (as they had, even more so, for Obama). Millennials are already more non-religious than previous generations; the association of evangelicals with Trump threatens to intensify that.
Let me be clear: I understand the reasons for evangelicals to oppose Clinton, even support Trump, because of concerns about abortion and religious liberty. But what is absolutely plain is that evangelical leaders (institutional, media, etc.) must hold him accountable, on an ongoing basis, for his behavior in office. They must criticize him vigorously for any statements or policies attacking minorities, or women, or individuals with whom he gets in a spat. If they do not give him such dogged scrutiny and criticism, their credibility will steadily erode over the next four years--with awful results for their evangelistic task and, ultimately, for their ability to argue for freedom to serve others through their religious organizations.
Wednesday, October 12, 2016
Protestant fundamentalist anti-Catholicism ain't what it used to be; it's far less prominent in the Protestant vision today. But you sometimes run across current versions, and I just ran across a passage that made me laugh out loud. It's a criticism of a younger evangelical speaker/blogger, Jen Hatmaker, and the supposed theological dangers she poses. One such danger, the critic says, is that Hatmaker has called Pope Francis one of her heroes and
also has a quote from Mother Teresa prominently displayed on the opening page of her personal website. The quote itself is not wrong, but it is not wise to point other Christian women to any Catholic leader as an example of Christ-likeness. Christ is our head, He is our model. [That's true.--TB] To say nothing of the fact that the Roman Catholic church is an apostate counterfeit of the true Church.
I love the writer winding up that paragraph by just tossing in the last sentence.
Actually the post then raises a worthwhile reminder on a separate issue: how people can get smug when they reduce Christian faith to doing good works, i.e. "works-righteousness piety." But I digress.
Sunday, October 9, 2016
Marc places a passage from political philosopher Ryszard Legutko in "conversation" with my assertion (in this post) that "[i]n an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make." That sentence introduces the post, which in turn links to my article exploring how exactly the societal contributions that religious organizations make are relevant to the case for religious freedom. In that article I assert that the societal contributions are part of the case for religious freedom: "an important strain in America’s religious freedom tradition" is that "we protect voluntary religious organizations is that they are important means by which individuals develop and exercise 'civic virtue.'” I then acknowledge some objections to this argument and briefly develop some corresponding answers.
The Legutko passage describes, critically, two of the strategies Christians might adopt toward liberal democracy: "conciliation" and "capitulation." (I should make clear that can react only to this passage, because I don't know the book's broader arguments.)
The aim of the conciliatory Christians has been to avoid conflicts with the liberal democrats and to adapt themselves to the existing system, which they thought sufficiently spacious and friendly to include Christianity together with other religions; the aim of the Christians who have capitulated is to be admitted to the liberal-democratic club, and in order to do it they are willing to accept any terms and concessions, convinced that remaining outside this club or being refused entrance would bring infamy on them.
I'm not sure whether Marc's suggestion is that arguing for religious freedom based on religion's societal contributions reflects "conciliation" or that it reflects "capitulation." (From the quoted description, capitulation sounds worse, but "conciliation" sounds naive). I don't think it reflects either, really. I'm talking about arguments in the legal and political arena that religious organizations should be legally free to follow their tenets and identity, even in the face of conflicting laws, when they serve and employ others in society. (The provision of service and employment to others outside the immediate religious community is what's triggering the most serious threats to religious freedom; the legal position of churches as such still remains pretty strong, although not impregnable.)
If an organization advocates for the ability to follow its tenets in the face of the law, it certainly is not capitulating: it's not showing a "willing[ness] to accept any [and all] terms and concessions." It's not like, for example, Catholic colleges dropping major religious elements in order to be eligible for government funding. Here the organization advocates to preserve its differences, not to shed them. (Elsewhere I've argued that these organizations are "partly unacculturated" in that they adhere to certain counter-cultural norms, and that they may be effective because they are willing to be counter-cultural.)
The "societal contributions" argument is "conciliatory," but only in the sense that making any argument in the legal or political system seeks to work within that system and holds out some hope for doing so. Perhaps the hope is misplaced and no arguments will succeed--but we don't know that, and the project still seems worth pursuing, among other things because I don't see that it involves any compromise of principle, i.e. "capitulation." This kind of "conciliation" does not seem to fit Legutko's analysis, later in the paragraph, that conciliation rests on the premise
that an enormous part of the activities of churches and an enormous area of religion have nothing to do with politics, socialism, liberal democracy, or anything related. Religion and churches are about God, souls, and salvation. Therefore, because we live in a civil society governed by the rule of law, waging big political battles against it is not only meaningless from the perspective of religion but pulls the churches away from their primary mission, which is that of evangelization.
To the contrary, the "societal contributions" argument asserts that religious organizations are not simply "about God, souls, and salvation": they have service work in society at their religious core, as a matter of loving their neighbors. (Service to others is in fact part of "evangelization," but the Legutko passage seems to use that term in the narrow sense of saving souls--which sounds more fundamentalist-Protestant than Catholic.) So while the "societal contributions" argument may defend religious freedom in secular terms, it does not adopt secularism in the sense of privatizing religion and conceding its irrelevance to society. To contrary, it argues for religious freedom precisely because religion is relevant to society.
I would describe arguing for religious freedom based on religion's societal contributions not as conciliation or capitulation, but as a kind of political/civil "apologetics." All apologetics assumes some receptivity in the hearer; in that (limited) sense it's conciliatory, but it seems to me in that limited sense, the Catholic tradition itself is conciliatory.
I also think that the "societal contributions" argument fits with a Catholic (and more broadly Christian) understanding of civil society, where moral and "political" claims are is not limited to claims about what moral projects government itself should pursue. The argument is that religious organizations also serve moral/political/social goods: they are mediating institutions that make distinctive contributions to a flourishing society.
This is one among several arguments for religious freedom--aimed at people in the ideological/political/jurisprudential middle. Those are the arguments that I generally choose to pursue and refine, in my current work, because I think they have a chance of succeeding.