Tuesday, November 7, 2017
A committee at the University of Michigan is studying whether to rename an academic building currently named for geneticist and cancer researcher C.C. Little, the university's president in the 1920s, who was also a leading eugenicist and president of the American Eugenics Society. At a September forum accompanying a student rally calling for the renaming, a UM history professor reviewed Little's involvement:
[P]rofessor Martin Pernick opened the panel by discussing the topic of eugenics in a broad sense and what role Little played in it. Pernick made the argument that being in support of the idealistic form of eugenics was not cause enough to remove a person’s name from the building they were named after.
“Eugenics meant a lot of different things to a lot of different people,” Pernick said. “Charles Darwin’s cousin, Francis Galton, defined it as the use of science to improve human heredity. Who can argue with that? Using science to improve things.”
Pernick explained Little’s interpretation of eugenics was what merited a renaming of the building named after him. According to Pernick, the type of genetics Little supported was one that promoted the advancement of those who held power in society in the early 20th century, through any means necessary.
“The kind of eugenics that Little promoted included all of the American Eugenics Society’s most controversial methods: compulsory sterilization, ban on interracial sex, selective immigration and restrictions by ethnicity,” Pernick said.
In an interview, university president Mark Schlissel says he has no opinion yet and is waiting for the committee report, which he notes is charged with suggesting criteria for these renaming debates:
[O]ne of the more interesting and challenging criteria is: You can imagine there are many ideas that in today’s context seem ridiculous, that they’re so out of step with our current values and the current social norms in our society that they make no sense. However, when you’re thinking about a naming, you have to actually go back in time to when the naming happened, and then figure out in the context of those times, how do you judge that person? Were they typical of their era, or were they a terrible outlier that, regardless what the era was, you wouldn’t want to associate yourself with their values? That’s a very hard thing to do because I’m sure 100 years from now there are going to be things that we all do and think and care about today that our society a century from now is going to think about really differently. That’s happened all throughout our history, there’s no reason to think it’s not going to keep happening.
How should one shaped by the criticism of eugenics found in Catholic social thought assess a debate like this? (1) Welcome the fact that the wrongs of eugenics have been brought to campus attention through the kind of student advocacy that we've seen concerning other historical wrongs? (2) Suspect, and complain, that condemnations of eugenicists will be selective (e.g. entirely omitting Margaret Sanger or Clarence Darrow) and overly narrow (e.g. underplaying its threats to human dignity that are not tied to racial/ethnic discrimination) and will simply rest on the currently dominant political views on campus? (3) Some other assessment?
Monday, October 30, 2017
In the last month, I've given a lecture, "Religious Freedom in a Polarized Age," as the Lin Lecture at St. Mary University Law School in San Antonio, and as the Veninga Lecture at the Wisconsin Institute for Public Policy and Service. Recordings of those lectures are, respectively, here and here. A summary paragraph:
In [recent high-profile religious liberty] cases, divides over religious liberty increasingly trace, and even intensify, the divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support LGBT nondiscrimination laws, you reject any religious-liberty challenges to those laws; likewise if you support immigration restrictions. Both left and right do it.
This is a bad development: that’s my thesis today. We must renew our commitment to religious freedom for all. That proposition has two parts. First, we should place a strong value on religious freedom, which I define as the ability of people to live consistently with their religious beliefs and identity, presumptively free from government penalty for doing so. We have to balance that freedom with other values, but it should receive heavy weight in the balance. Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and conservative Christians. Today more than ever, Americans need to affirm what Justice Oliver Wendell Holmes called “freedom for the thought we hate.”
As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. We argued in short, that
Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.
Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation.
We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:
In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....
... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.
Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.
Saturday, September 16, 2017
The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding.
Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.
[Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.]
Friday, September 8, 2017
Democrats for Life have issued a statement criticizing Democratic senators for the questioning of Amy Barrett in her confirmation hearing. Some excerpts:
Democrats For Life of America (DFLA) expresses its disappointment with Democratic senators and interest groups who are attacking federal court of appeals nominee Amy Barrett for her personal religious views on the dignity of human life at all stages.
Vigorous questioning of President Trump's judicial nominees is needed to ensure that if confirmed to the court, they will follow the law and protect civil rights and liberties. But Senator Dianne Feinstein (D-CA) stepped over a crucial line when she told Barrett in Wednesday's confirmation hearing: "The dogma lives loudly within you. And that's of concern when it comes to big issues."
Feinstein really means one issue, of course: abortion. And what she denigrates as "dogma" is the Catholic teaching that a human being is a person with dignity from the moment of conception--a belief held by millions of Americans, including believers of all faiths and nonbelievers alike.
But Senator Feinstein has no basis for holding this "dogma" against Professor Barrett. The nominee repeatedly made it clear that as a judge on a lower federal court, she would follow her oath to decide cases not by her personal views, but according to the law as set forth by the U.S. Supreme Court. Sen. Feinstein had no evidence with which to question those assurances. So instead she suggested that Barrett's statements could not be trusted because "the dogma lives loudly within [her]." ...
Unbelievably, senators and interest groups have attacked Barrett with a 20-year-old article she co-wrote--not about abortion, but about Catholic judges conscientiously opposed to the death penalty!
That article noted the strong Catholic teaching against capital punishment, and it said that a Catholic judge who opposed issuing a death sentence might have to remove ("recuse") herself from the case, which is a well-established practice. The article made it clear that recusal would be the proper step: The judge may not stay on the case and rule according to personal beliefs instead of the law.
Yet Democratic senators and supposedly "progressive" interest groups are claiming that Barrett said she would impose her beliefs upon the law—when, in fact, she said the exact opposite.
In other words: Barrett said that a judge should never contradict the law but should remove himself from a case if he, in conscience, believes that ordering the execution of a human being would be immoral. And Democratic senators are expressing "concern" about that. When did our party--which once stood up for the conscientious claims of civil-rights marchers--become so fearful and dismissive of personal moral conscience? ...
Democratic leaders remain so committed to protecting abortion from even minimal threats that they'll trample on other principles to do so. A nominee repeatedly makes it clear that she won't impose her personal beliefs as a judge--that she'll remove herself from a case if she faces a conflict of conscience. But Democrats still reject her because they think that she has strong personal religious beliefs ("dogma").
It's another example of how the Democratic Party loses its way when it focuses on protecting rigid abortion-rights ideology to the exclusion of all other principles. That same misguided focus has caused the party to lose all branches of the federal government and, in the last eight years, 1000 legislative seats around the country....
Thursday, August 31, 2017
OK, this may be shooting fish in a barrel, but I can't resist....
Illinois has passed a new school funding law that embodies a significant compromise deal by Democrats and Republicans. Among other things, the law reworks the funding formula to rely less on property taxes, thereby increasing the share of funding allocated to poorer districts. It also includes a school-choice measure: a 5-year pilot program of tax credits for people who donate to provide scholarships for modest-income students to attend private schools. Democrats wanted the first of these; Republicans wanted the second. My first reaction, as a temperamental and philosophical moderate, is that it's great simply that the two sides came together. My second reaction is that both of these measures are good for the poorest students: on the one hand, money matters, and on the other, Catholic schools (the largest group of private schools) do an especially good job of educating disadvantaged children.
But some Democrats (I think some Republicans too) didn't go along. They were willing to vote against the funding-allocation changes, and see them defeated, in order to stop a relatively modest school-choice program. One of them, Rep. Will Guzzardi, D-Chicago, offered one of the sillier sound-bites against school choice that I've heard. He told the Chicago Sun-Times: that the program was "unconscionable" because:
“Eventually hundreds of millions of dollars of our public money is going to be diverted away to give tax breaks to very wealthy people and big businesses who are contributing to private school scholarships and that’s wrong to me."
Yes, it's unconscionable to provide a tax break to line the pockets of wealthy people with money that they must give to assist poor people. Indeed, that whole tax deduction thing for gifts made to charities that help the needy--what an unconscionable giveaway to the privileged.
If you oppose school choice, make your arguments under the real issues: how to get the best educational quality, how to teach kids respect for differing races or religions, etc. Don't mindlessly thrown in progressive-sounding but irrelevant phrases like "tax breaks to very wealthy people and big business."
Friday, August 25, 2017
This open letter is now up at The Gospel Coalition, an evangelical website. Signatories are invited; I believe it's well considered, and well expressed, on a crucial issue at an important juncture. A few snippets:
What we have seen in Charlottesville makes it clear once again that racism is not a thing of the past, something that brothers and sisters of color have been trying to tell the white church for years.
Racism should be denounced by religious and civic leaders in no uncertain terms. Equivocal talk about racist groups gives those groups sanction, something no politician or pastor should ever do. As Christian scholars, we affirm the reality that all humans are created in the image of God and should be treated with respect and dignity....
Even as we condemn racism, we recognize that the First Amendment legally protects even very offensive speech.... [Moreover, ...] No one is beyond redemption, so we encourage our fellow believers to pray that members of these groups will find the truth, and that the truth will set them free.
Monday, July 10, 2017
Over the last few years, in the controversies over various proposed state religious freedom restoration acts (state RFRAs), a group of scholars supportive of RFRAs in general have written memo-type letters to state legislatures. Given the often simplistic and distorted public debate, the letters' main purpose has been to set the record straight on what RFRAs are likely to do: their main effect would be to protect classic religious minorities in a wide variety of circumstances, far more than the handful of instances involving small-vendor objectors to weddings etc. (on which the precedents indicate the RFRA results would be uncertain).
Those letters are archived here at MOJ. To go directly to the post collecting the letters, click here. You can also find them now by clicking on the "Resources" link at the top of the MOJ page (then, on the Resources page, look under "Links").
The letter signatories do not always support the particular RFRA-related legislative proposal being considered; for example, some signatories to 2014 Arizona letter took no position on the amendments to the preexisting Arizona RFRA that triggered that controversy. (It also seems worth mentioning, given the context of the controversies, that the signatories have always included supporters of same-sex marriage, including yours truly, as well as skeptics or opponents.)
Hopefully this archive will be a useful resource for scholars, advocates, and decision makers of varying views.
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.