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.
Wednesday, September 28, 2016
The Berkley Center at Georgetown is a leader in supporting and publicizing the growing body of empirical research that catalogs and quantifies the contributions religious organizations make to society: serving those in need, employing workers, mobilizing volunteers and donors, etc. On the Berkley Center blog, I have a piece exploring how these findings are relevant to religious freedom for these organizations. It starts off:
A new study by the Religious Freedom and Business Foundation quantifies the socio-economic value that religious organizations contribute to America: nearly $1.2 trillion yearly in economic activity and in services to others. The analysis reinforces evidence previously amassed by scholars like Ram Cnaan, John DiIulio, Steven Monsma, and Robert Putnam and David Campbell.
Such evidence is relevant to the questions about religious freedom that currently vex American society—in particular, the rights of religious organizations, both churches and nonprofits, to adhere to their religious tenets and identity in hiring employees and serving clients. Countering the one-sided view that freedom of religion is simply a cover for irrationality and bigotry will open minds to considering religious freedom arguments rather than dismissing them out of hand.
More specifically, this argument that religion benefits society reflects an important strain in America’s religious freedom tradition. One reason we protect voluntary religious organizations is that they are important means by which individuals develop and exercise “civic virtue.” ...
I go on to address some important challenges to the idea that religious organizations' societal contributions are a ground for protecting their religious freedom--for example, "If religious organizations are so important and pervasive, doesn’t society have to regulate them heavily to limit their harms to others?"
In 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. This piece is a brief exercise in refining the arguments. (I have longer versions of my thoughts here, at pp. 113-26, and here, at pp. 307-18.)
Wednesday, September 21, 2016
Scholarship about religious-freedom exemptions from laws has increasingly focused on whether the existence of any "harms to third parties" is a ground for holding that an exemption is not required by religious freedom principles, or is perhaps even forbidden by the Establishment Clause. I've just published my analysis of the question, in the Federalist Society Review. A couple of excerpts:
The chief assertion of this article is that harms to others should not be conclusive against religious exemptions under either free exercise or nonestablishment principles. Such harms can certainly be a reason to deny exemption, but they are not the end of the inquiry: a number of factors must be considered. In particular, I argue, Establishment Clause limits on religious exemptions should not be strict. An exemption is not unconstitutional merely because it has negative effects on others: the burdens on others must be significantly disproportionate to the burdens that it removes from religion....
Under post-1937 constitutional jurisprudence, government has broad prima facie power to define, declare, and prohibit [legal] harms. The modern state is not limited to imposing liability for actual harmful effects; it may declare legal rights designed to head off such effects. And it may frame them as benefits or rights for individual third parties. For example, to prevent the ultimate material harms of labor strife and unfair treatment of employees, government can declare rights of employees to unionize and can allow individuals to sue to enforce the right.
But just because government can prima facie regulate does not mean it can do so in ways that substantially burden religious exercise. The very point of the freedoms listed in the Bill of Rights, including religious freedom, is to place limits on actions otherwise within the government’s power. If religious freedom confers no right to harm others, and the government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom. For example, once Title VII and analogous laws defined various forms of discrimination as a legal harm to employees, religious organizations faced lawsuits triggering civil court review of their employment decisions concerning their clergy and other leaders. Their ability to choose their leaders was preserved only by a court-ordered religious exemption: the ministerial exception, affirmed in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC....
If religious freedom is to continue receiving strong weight in an era of greatly expanded government, the existence of some harm to other individuals cannot be enough in itself to deny exemption or accommodation. On the other hand, harms to others certainly are grounds for limiting religious freedom in a number of circumstances.
... And then you read the rest to find out when. (I've done a longer version of the arguments here.)
Monday, August 29, 2016
Some thoughtful and committed folks, mostly younger evangelicals, have announced this venture and issued a vision statement responding to our current situation, which they describe as follows:
In the midst of another divisive election and a political culture that thrives off of conflict, many Christians and other Americans are tempted to check out and claim the posture of a conscientious objector or to dig in for even greater political hostilities. We believe that neither political withdrawal nor reinvigorated culture wars by Christians will help our nation and communities through the difficult challenges we face.
The headings in the statement include (A) "Pluralism and 21st-Century Religious Freedom"; (B) "Poverty, Stewardship, and Caring for the Most Vulnerable"; and (C) "Strengthening Families and Reducing Abortion."
Check it out.
Sunday, August 28, 2016
Religion News Service, through Crux, reports the shocking news. Progressive churches and social service ministries sometimes run up against legal regulations that prevent them from serving others, and they sometimes seek exemptions--including under those awful state religious-freedom statutes. They sometimes even do it when their work could cause "third-party effects," for example on homeowners in the neighborhood of a homeless shelter or food pantry. Who would've thunk it?
This is a reminder, as I've argued here, that religious freedom is for everyone, and deserves support from progressives and moderates as well as conservatives.
Thursday, August 25, 2016
Today, while in Boston visiting potential colleges with our son, we toured the JFK Presidential Museum. It's fascinating set of exhibits with artifacts, news footage, audio interviews, letters, etc.--well worth an afternoon when you're in town. One artifact was a marked-up invitation list for a 1962 White House state dinner honoring Andre Malraux, then France's Minister of Cultural Affairs. Here's the first page of the list:
They would have been decent table company, no? (I'll take the list as an official White House recognition that Murray and Niebuhr, as I've argued, should go together--even if the Niebuhrs for whatever reason were crossed off this dinner.)
So I came back to our B&B thinking about the decline in public prominence of Christian intellectuals in America since 1962, and a friend pointed me to Alan Jacobs' new essay in Harper's--subtitled "What Became of the Christian Intellectuals?" Unsurprisingly with Jacobs, it's a great read. Here's a taste of his explanation (which, in full, touches on the careers of, among others, T.S. Eliot, Maritain, Niebuhr, Auden, Richard Neuhaus, Cornel West, and Marilynne Robinson):
It was the Sixties that changed everything, and not primarily because of the Vietnam War or the cause of civil rights. There were many Christians on both sides of those divides. The primary conflict was over the sexual revolution and the changes in the American legal system that accompanied it: changes in divorce law, for instance, but especially in abortion law. (Many Christians supported and continue to support abortion rights, of course; but abortion is rarely if ever the central, faith-defining issue for them that it often is for those in the pro-life camp.) By the time these changes happened and Christian intellectuals found themselves suddenly outside the circles of power, no longer at the head table of liberalism, Christians had built up sufficient institutional stability and financial resourcefulness to be able to create their own subaltern counterpublics. And this temptation proved irresistible. As Marilynne Robinson has rightly said in reflecting on the agitation she can create by calling herself a Christian, “This is a gauge of the degree to which the right has colonized the word and also of the degree to which the center and left have capitulated, have surrendered the word and also the identity.”
As they say, read the whole thing.