Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, May 23, 2018

"Vocation, Expressive Conduct, and Religious Liberty"

Although I haven't read it carefully, this student note looks like a useful addition to the literature on free-exercise exemptions in the commercial sphere. Although it appears to settle on some of the same considerations as previous articles to delineate some such exemptions as proper while setting limits on their scope, it does so through the (worthwhile) introduction of the concept of religious "vocation" in one's business.

Recent scholarship on religious liberty claims, perhaps following the lead of litigants raising claims for religious exemptions in the wake of Obergefell, has largely focused on arguments that certain forms of business activity are “expressive conduct” that government cannot compel. This Note aims to shift the focus of the debate, by arguing that the expressive conduct line of argument distracts from the real collision these cases involve, between two kinds of identity that are both worthy of protection. This Note's argument is twofold. First, it invokes the concept of vocation, understood as a religious obligation or set of obligations regarding work-related conduct, to suggest that, for many, how one acts in one's work is a key part of one's religious identity. Second, it argues that the concept of vocation can, and does, impose meaningful limits on the availability of exemptions from anti-discrimination laws, mitigating the fear that allowing such exemptions will eviscerate the law's ability to protect against discrimination.

May 23, 2018 in Berg, Thomas, Current Affairs | Permalink

Wednesday, May 9, 2018

"Why American Politics are a Nightmare for Catholic Universities," featuring Garnett et al.

Our own Rick Garnett is quoted in this pretty even-handed piece in The Atlantic about the challenges Catholic universities face in having political figures speak at major events like commencement: from Obama at Notre Dame to Betsy DeVos this year at Ave Maria University. Since Catholicism cuts across the political parties' platforms, any such invitation is likely to trigger strong criticism from some significant number of people: 

There are unclear areas in what Catholicism recommends—for example, the Church holds that members should care for the poor, but what that means in practice is debated—that make it hard to associate the religion with one party exclusively. [True, although I'd say it's more that each party has, in different ways, moved away from some important aspect(s) of Catholic social teaching.--TB] But the rigidity of polarized American politics isn’t accommodating of a cafeteria-line approach to political positions: There’s no taking a little from one party, a little from another, and a little from a third. It’s all or nothing. That often means that if someone picks a side in one policy, he or she will be criticized for aligning with the broader agenda of that side.

Richard Garnett, a professor at Notre Dame who writes about freedom of speech and religion, put it like this: “It’s going to be a rare politician [who is] going to line up with the catechism on all fronts.” So, predictably, when a political figure is invited to speak at a Catholic event, it is going to be divisive. “It’s almost always going to be true given American politics and the way our parties divide up,” he said.

The answer is probably, as others have suggested, to stay away from politicians for a while and invite people doing good things in other walks of life. After all, there's not a lot to hold up as exemplary in the national political parties right now.

May 9, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, May 8, 2018

Democrats for Life Student Scholarship Essay Contest

Information and further links here. Deadline is June 20. The winner will be invited to read the winning essay at DFLA's annual conference, July 20-22, in Denver.

+++++++

For Students age 16 to 26.

Prizes $2500, $1000, and $500.

Runs 15 March to 20 June 2018.

Welcomes Any [or No] Party Affiliation, Any [or No] Political Stance.

Here’s the prompt:
MANY PEOPLE ASSERT THAT THE TERM "PRO-LIFE DEMOCRAT" IS CONTRADICTORY. HOW WOULD YOU RESPOND TO SOMEONE WHO MAKES THIS ASSERTION?

Please Forward, SnapChat, Facebook, Instagram, Twitter, Pinterest, Tumblr, WhatsApp, etc. to those you think interested. Click here to learn more.

May 8, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, May 1, 2018

Berman Award for Law & Religion Scholarship: Call for Nominations

Call for Nominations:

Harold Berman Award for Excellence in Scholarship

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at nt277 at cornell-dot-edu by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

May 1, 2018 in Berg, Thomas | Permalink

The Costs of Invalidating the Housing-Allowance Exclusion

In Gaylor v. Mnuchin, the Seventh Circuit is reviewing a district judge's ruling that the Establishment Clause invalidates section 107(2) of the IRS Code, the provision that allows ministers/clergy (of all faiths) to exclude an employer-provided housing allowance from income for federal tax purposes. (Section 107(1), which allows exclusion of the value of an employer-provided parsonage, is not challenged.)  Becket, which represents clergy intervening in the case to defend the provision, has a case page on its website. A brief summary of the argument on the merits in Becket's opening brief (at 6):

Section 107(2) takes the longstanding convenience-of-the-employer doctrine, which [excludes employer-provided housing from income if the employee--religious or secular--uses it for the employer's convenience], and applies it to ministers in a way that reduces entanglement and discrimination. [From TB: It reduces entanglement in the sense that otherwise the IRS would have to make religiously sensitive inquiries inquire into what constitutes meaningful use of the minister's home for the church. And it reduces discrimination in the sense that limiting the exclusion only to church-provided parsonage favors those churches that are old, established, or wealthy enough to have an existing parsonage or be able to make a down payment on a new one.]

Several amicus briefs filed support the government and the clergy-intervenors. Our Religious Liberty Appellate Clinic at St. Thomas helped draft a brief laying out the serious consequences for ministers and churches if 107(2) is invalidated. Using a variety of national surveys, we document these conclusions (from our summary of argument, pp. 3-4):

      A. Housing allowances excludable under § 107(2) are deeply embedded in our national life—that is, widely used in ministerial compensation structures. [Citing the "deeply embedded" standard from the Court's approval of tax exemptions in the Walz case.] Figures in studies indicate that anywhere from 61 to 81 percent of congregations rely on housing allowances (as opposed to church-owned parsonages) to give their ministers housing benefits.

      B. Invalidating § 107(2) would significantly disrupt the activities of ministers and congregations that have relied on the provision. The effects are evident in simple hypothetical examples involving a congregation of around the median-size budget, which is a modest $85,000. Solo ministers in that range receiving the median base salary—a modest $35,000—and a median housing allowance could see their federal tax liability nearly triple. To keep their ministers or preserve their financial stability, congregations would have to offset the added tax liability, including increased state income taxes. And the added compensation to accomplish that offset must significantly exceed the added taxes, since the new compensation is itself subject to federal and state income tax and federal self-employment tax. Calculating these effects in a simple hypothetical for a median-sized congregation shows how disruptive the invalidation of § 107(2) would be for congregations that have little cushion to absorb the effects.

We also present evidence that invalidating 107(2) "would disproportionately harm smaller congregations and those that must rely on a housing allowance as a means of structuring clergy compensation," and that it "would especially retired ministers and those nearing retirement."

St. Thomas 3L student Kacie Phillips (about to graduate!) did outstanding work on the review of studies and on the initial drafting of the brief.

May 1, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Friday, April 27, 2018

Why a Legislative Chamber Should Not Have an Official Chaplain

Here. (Whether it ultimately turns out that Fr. Conroy's dismissal as House chaplain was for political/theological reasons or because of "pastoral care" shortcomings.)

Rotating prayers before legislative proceedings are a separate question (Town of Greece). We might or might not think those are an acceptable even-handed accommodation or acknowledgment of religion. But putting one person in this post, and then fighting over whether his/her performance or views are acceptable, is ridiculous.

April 27, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, April 17, 2018

ACS Webinar on Travel-Ban Case

On Thursday, April 19, I'll be one of the speakers on a webinar sponsored by the American Constitution Society, "The Travel Ban at the Supreme Court: A Briefing on Trump v. Hawaii." (Information and registration, for a call-in password, are here.) I'll speak on the Establishment Clause issues--more broadly, the Religion Clause issues--raised by the travel ban's roots in anti-Muslim statements and promises by President Trump. (Oral argument in the case is next Wednesday, April 25.)

I ultimately support the religious-discrimination challenge to the third travel ban. (As I'd done before, I joined an amicus brief of constitutional scholars arguing that the ban is rooted in animus toward one religious faith, prohibited by the free exercise, equal protection, and non-establishment provisions. Our own Michael Perry also joined the brief.) But there are several complications in this analysis, and I'll discuss some of them and explain why I support the challenge.

The webinar runs from 3 to 4 p.m. eastern time. Other speakers are Doug Chin, Hawaii's former Lt. Gov., and Shoba Sivaprasad Wadhia, founder and director of the Center for Immigrants' Rights Clinic at Penn State Law.

April 17, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, March 20, 2018

"Religious Freedom and the Common Good": Symposium at St. Thomas Law, March 23

Reposting this. Twin Cities and upper-Midwest readers, please come join us!

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together two groups--(1) social scientists who study the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizers are the Baylor University Institute for Study of Religion (ISR); St. Thomas's Murphy Institute for Catholic Thought, Law, and Public Policy (co-directed by our own Lisa Schiltz); and the Religious Freedom Institute.

Here is the conference description, with times and titles of various presentations. A little more about the speakers:

  • Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
  • Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
  • Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
  • Jackie Rivers, an expert on the social role and contributions of African-American churches
  • Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
  • Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
  • Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
  • Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
  • Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
  • Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
  • Yours truly

A description in text: 

     Challenges to religious freedom have become more prominent and intense in recent years, both in the US and abroad. The conflicts involve both individuals and nonprofit religious organizations, of varying faiths, and laws on matters from nondiscrimination to healthcare to national security. Arguments over these questions typically treat religious freedom as a matter of personal individual autonomy. But religious freedom may have another important dimension: the common good. Indeed, in an era of increasing skepticism toward many religious-freedom claims, the defense of religious freedom may increasingly rely on showing that it preserves space for religious groups to benefit individuals and society.

     Social scientists have done considerable research on the asserted contributions of religion and religious organizations for individual believers, for recipients of social services, and for society. But what are these contributions, and how well established are they? Moreover, what relationship do they have to religious freedom in the American tradition? Can religious freedom be justified in part based on its contributions to the common good, and how would such arguments affect the scope of religious freedom?
 
     To address these questions, this conference brings leading social scientists together with a variety of legal scholars, advocates, and policy experts. Among the topics will be the contributions of religious organizations to social services, the founders' views of religion's societal effects, the benefits and risks of religious freedom for African-Americans, the role of religious freedom in countering terrorism, a view of religious-freedom issues from within government service, and the causes and consequences of religious-freedom restrictions in various nations.
 
     Conference papers will be published in the University of St. Thomas Law Journal and, in shorter form, in other venues.

March 20, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, February 21, 2018

"Religious Freedom and the Common Good" Symposium: March 23 at St. Thomas Law

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together (1) social scientists who measure the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizer is the Baylor University Institute for Study of Religion (ISR).

So far just a Facebook link, so I'll post at a bit of length. Speakers include:

  • Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
  • Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
  • Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
  • Jackie Rivers, an expert on the social role and contributions of African-American churches
  • Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
  • Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
  • Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
  • Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
  • Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
  • Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
  • Yours truly

Here's a fuller description: 

Continue reading

February 21, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

"The Question of Religious Freedom" (Loyola)

For readers in and about Chicago: The theology department at Loyola U. is sponsoring a program on "The Question of Religious Freedom," on Monday, March 12 (evening keynote), and Tuesday, March 13 (day-long) at the downtown campus. Speakers include Barry Hudock, author of Struggle, Condemnation, Vindication: John Courtney Murray’s Journey toward Vatican II; Robin Lovin, one of the nation's most distinguished mainline Protestant social ethicists; and three legal scholars, Kathleen Brady, Leslie Griffin, and yours truly. 

From the description:

In recent times, religious freedom has reemerged as a key and controversial issue within the United States and around the world.  With a desire to contribute to this essential conversation, we have invited prominent scholars to discuss and analyze religious freedom as it relates to issues of social polarization, peaceful coexistence, non-discrimination and the common good. We also will look back to the contribution of John Courtney Murray, S.J. to Dignitatis Humanae, the groundbreaking document on Religious Freedom issued in [1965] by the Second Vatican Council. 

I'm looking forward to the program: an examination of Murray's legacy on this issue, a wide-ranging set of current perspectives, an important set of themes ("social polarization" et al. above), and ample time allocated for the speakers and audience to air and explore those themes thoroughly.

February 21, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink