Mirror of Justice

Letters on State RFRAs: Archive Here at MOJ

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.

Reflections on Freedom in Contemporary Society

Like our colleague, Rob, this Fourth of July caused me to reflect on what it means to celebrate our nation. While we can all say we treasure freedom, I often feel as though that word is an abstract term for many of us. Indeed, most Americans are fortunate to have been born into a state of freedom - in the sense that we are not actual slaves.  Therefore,  when we say we are "thankful for our freedom," do we really have any sense of what it is like to not be free?  I am not sure that someone from my generation who is not in the military can really can imagine a true threat to our free lives in the same way an American who survived Pearl Harbor or the Cuban missile crisis can.  When we see those bumper stickers that say "freedom is not free," do we really understand laying down our lives in order to live outside of a totalitarian regime, end enslavement, or allow others to escape oppression?  I suspect, again with the exception of our veterans of the longest war, not.  I think most of us would be perplexed in identifying what role we play in creating the freedom that we enjoy.

But the truth is we play a significant role in achieving or denying freedom.  If we define freedom more broadly to include more than freedom from totalitarian government or the institutution of slavery, but consistent with the TVPA's definition of modern slavery- we see we have a role to play in ending it as significant as the minutmemen of 18th century New England.  

This point was brought home earlier this week by Pope Francis who reminded us that so much hunger and poverty is cause by the "indifference of many and the selfishness of the few."   While we think of actively supporting an unjust government or the institution of state sanctioned slavery as the only ways in which we remove freedom from others, we are wrong. Our indifference can have the same effect. In a world with an estimated 21 million people working in conditions of forced labor, we must recognize that more people are enslaved today than at any other time in history - including at the height of the Trans-Atlantic slave trade. We also know through research that poverty and hunger are major causes of modern day slavery - operating as factors that push people into conditions of forced labor or sex trafficking. 

Therefore, every time we ignore or are indifferent to the hunger and poverty of others, we are encouraging modern day slavery. On this  Fourth of July, the Holy Father's words implore is to do more than eat hot dogs and apple pie and appreciate our freedom. Rather, they call us to appreciate our role as consumers or bystanders who, through our indifference, contribute to slavery of others. In the words of Pope Francis, "All of us realize that the intention to provide everyone with his or her daily bread is not enough. Rather, there is a need to recognize that all have a right to it...." Therefore, perhaps we can celebrate this freedom by - as consumers and bystanders - working to eliminate the enslavement of others and truly appreciate freedom in a new way. 

Catholic Convocation: Joy of the Gospel

The Catholic Convocation just ended with Mass celebrated by Cardinal DiNardo and words from the Nuncio, who was present throughout. As a follow-up to Rick's post, it was a true joy to be with 3500 fellow Catholics at this event convened by the Bishops. In addition to Rick's panel, Helen Alvare (MOJ alum) gave wonderful remarks on the complementarity of women and men and the need for that complementarity to be present throughout the Church. MOJ friend, John Garvey gave a wonderful talk for the need for the renewal of the Catholic Intellectual life on our college campuses. Bishop Barron must have been listening. This morning, in a moving talk, Bishop Barron said "I hate a dumbed down Catholicism."

The word that kept coming up in my mind throughout the Convocation was "accompaniment." Radical missionary disciples must be present in this broken world by accompanying others, especially those on the various peripheries, on this journey through life, meeting them where they are and helping them experience the infinite mercy that is saving us. Bishop Cheri of New Orleans reminded us a) that "we are all sinners! This does not prevent the witness of Christ and His mercy from shining through us." and b) he expressed the urgency in this call, "we must be living epistles" because "we might be the only book someone reads." Supreme Knight Carl Anderson mentioned a perfect example in the art of accompaniment in the life of Fr. Stanley Rother who will be beautified in Oklahoma City on Sept. 23 in a Mass open to all.

The Catholic Convocation: "The Joy of the Gospel in America"

Along with fellow MOJ-er Michael Scaperlanda (and a few thousand of our closest friends), I had the pleasure of attending and participating in the USCCB-hosted Convocation down in Orlando this weekend.  The theme for the 3 day event -- which gathered together a wide range of clergy, bishops, lay leaders, teachers, diocesan workers, etc. -- was "The Joy of the Gospel in America."  Here is the website.  I participated on a "breakout" panel -- one of dozens -- on church-state relations.  A number of the keynote talks, masses, homilies, etc. were recorded (and are still being recorded) -- I'd encourage MOJ readers to check it out!

Singer on Religion & Discrimination

Harvard law prof Joseph Singer has posted an article titled, Property and Sovereignty Imbricated: Why Religion is Not an Excuse to Discriminate in Public Accommodations.  He argues that "public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect."  From the conclusion:

Property may limit sovereignty, but it can only do so through normative judgments about the legitimate scope of property claims. Sovereignty may define property, but in a free and democratic society it can only do so legitimately by ensuring that free and equal persons are neither attacked nor abandoned in the street with money in their hands.

As such, those who oppose SSM are free not to celebrate same-sex marriages, free not to accept LGBTQ persons as equal members in their churches, free to speak their minds, etc., but "such freedoms end at the market's edge."

First, if you only have time to read one article by Professor Singer this holiday weekend, read his earlier paper, Normative Methods for Lawyers, which is an insightful and important analysis of legal education.  It has been required reading for every 1L student at St. Thomas since it was published.

Second, while I have only skimmed his new paper, I think he's focusing on the less interesting question (how can we justify public accommodation laws in the face of religious liberty objections?) instead of what I believe is a more pressing one: how should we craft public accommodation laws in light of our deep religious and moral pluralism?  Should we draw a distinction between a provider turning away LGBTQ persons from purchasing "off the rack" goods or services and a provider refusing to contribute customized, creative services to the celebration of a relationship to which they object?  For example, what does the relationship between property and sovereignty teach us about the law's appropriate treatment of Barronelle Stuzman? 

The Justice Gap: a nation heading in the wrong direction

As we celebrate our nation this week, it's a good time to take stock of areas in which we have more work to do to measure up to our founding ideals. The Legal Services Corporation recently released a report on “the justice gap” in our country, underscoring the scandalous failure to provide meaningful resources to meet the legal needs of low-income Americans (i.e., those living at or below 125% of the federal poverty level). Among the most striking estimates:

• 86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help;
•  71% of low-income households experienced at least one civil legal problem, including 97% of households with victims of domestic violence or sexual assault, 80% of households with kids under 18, and 80% of households with disabled persons;
• Courts are flooded with unrepresented litigants, even in high-stakes cases -- in New York state courts, for example, 98% of tenants in eviction cases and 95% of parents in child support cases were unrepresented.

Instead of making forward progress, we face an uphill battle even to maintain the status quo.  Last week, the House subcommittee responsible for LSC funding proposed a 24% cut to the agency, which is, sadly, an improvement from the White House's proposal to eliminate the LSC entirely.  We can do better.