Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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

"Playing God? Moral Arguments on Patents on Life"

I recently published some reflections on the issue of patenting of genes--human and non-human--from the perspective of religious and secular ethics. It includes reflections on the conference that St. Thomas's Murphy Institute co-sponsored with the Von Hugel Institute at St. Edmund's College, Cambridge (UK), last fall. A sample from my piece:

     The Cambridge conference showed how religious thought can make valuable contributions to debates over patents on life. Catholicism is well suited for these conversations, with its bedrock commitment to the dignity of human life, its history of reflection on the purposes and limits of private property, and its global network of institutions serving the poor and vulnerable....

     The conference also showed that the relationship between life patents and human dignity is complex. One cannot simplistically dismiss all patents in the genetic area as “playing God.” Christianity calls for us not to leave nature alone, but to exercise stewardship for the common good...

     But biotechnology, in the Pope’s words, also gives those with knowledge and economic resources “an impressive dominance over the whole of humanity,” and “nothing ensures that [such power] will be used wisely.” Thus patents related to living things still must be subjected to limits based in morality and the equal dignity of all persons. That means first (as all our conference speakers emphasized) that governments must continue to ban patents on natural products and processes, on human beings and on human organs.

     Second, even when biotechnology patents are appropriate, the effects of such technologies must be regulated to ensure they produce benefits, not harms.

UPDATE: Another piece on the issue, referring to our conference, by Simon Ravenscroft, one of our organizers, on the Religion and Ethics page of Australian television.



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

Wednesday, January 6, 2016

Wheaton and Islam: The Next Step, and the Unanswered Question

Wheaton College's provost is recommending that Professor Larycia Hawkins be removed from her tenured position for having stated (as part of an expression of civil solidarity with Muslims) that Muslims and Christians worship "the same God." The matter now goes to a faculty advisory committee for its recommendation, and then to the college president.

Wheaton's website contains a set of responses to FAQs concerning the situation. They don't address what I think is the most serious challenge to Wheaton: Do the asserted reasons for saying Islam worships a different God (i.e. Islam rejects the Trinity and Christ's place in salvation)  also apply to Judaism? Professor Hawkins seems to affirm (according to the Christianity Today link above) that Muslims and Christians understand God very differently. But the Jewish-Christian  differences in understanding of God--many of them similar to the Muslim-Christian differences--do not stop most Christians, I think, from saying that Christians and Jews both worship the God of Abraham.

On the other hand, Wheaton also says (in its FAQ responses) that "[o]n the part of the College, further theological clarification is necessary before [a] reconciliation [with her] can take place, and unfortunately Dr. Hawkins has stated clearly her unwillingness to participate in such further clarifying conversations," which created an "impasse." So perhaps she hasn't allayed concerns that, for example, her "same God" statement might be taken to reflect a more general religious universalism, or a minimizing of the deity and central importance of Jesus, both of which would of course be inconsistent with Wheaton's evangelical commitment.

But that doesn't deal with the more specific claim that "Muslims worship the God of Abraham, albeit with very different understandings than Christians." And I can't help but think that if one is willing to apply that to Judaism but not to Islam, the reason is cultural and political distrust rather than theological distinctiveness. Thus it would be good to know what Wheaton says in this context about Christianity and Judaism.

Thanks very much to Mike for quoting the Catholic Church's position on this from Nostra Aetate. Perhaps the Catholic teaching can give evangelicals some food for thought as they grapple with this issue.

UPDATE: Here is Professor Hawkins's fuller description of her position, in a December 17 letter to Wheaton's administration. HT: Frank Beckwith (he gives his own take on the issue here, and a catalog of others' perspectives here)

January 6, 2016 in Berg, Thomas, Religion | Permalink