Mirror of Justice

"Is Our Approach to Poverty All Wrong?": a piece about Notre Dame's Lab for Economic Opportunities

Here is an interesting opinion piece, by Thomas Hibbs, which discusses (among other things) the work of my Notre Dame colleagues at the Lab for Economic Opportunities.  A bit:

We all understand poverty is a problem, one that can seem intractable and inevitable. But what if the way we have approached poverty has been wrong for years, for generations even?

There’s evidence it might be.

The traditional model of the American social service industry has long been a one-size-fits-all approach that treats the symptoms of poverty — transportation, child care, food insecurity — but does nothing to address the cause. The result traps the poor in a never-ending cycle of dependency and stigma, creating repeat customers.

That scathing indictment comes not from a critic of the war on poverty but from one of its most passionate advocates.

Ministerial Exception Article, and Other Work from St. Thomas Religious Liberty Clinic

Originalist article and brief on ministerial exception.  My students Nathaniel Fouch and Erik Money and I have just published a piece in the Federalist Society Review. It's Fouch, Money, and Berg, "Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception." (PDF version here.) It arises from the two cases the Supreme Court just agreed to hear, St. James School v. Biel and Our Lady of Guadalupe School v. Morrisey-Berru., and an amicus brief that the St. Thomas Religious Liberty Appellate Clinic filed--with Nathaniel and Erik as student drafters--supporting certiorari (successfully) in the Morrisey-Berru case.  The article expands on the brief but also reflects our personal views rather than the views of the amici we represented (although the views of course are very similar).

The article and brief criticize the Ninth Circuit's reasoning in these cases that religious-school teachers teaching religion classes, who had other significant religious functions, were nevertheless not "ministers," and thus not within First Amendment protections for the schools, because they did not have ministerial training, ordination, or other "credential[s]." We argue that this reasoning violates basic Religion Clauses principles that prohibit discrimination among religious groups/polities and judicial second-guessing of religious organizations' self-understanding. Most centrally, we have an originalist argument, pointing  to 18th-century colonial laws in New England and Virginia that set educational and other credentials for ministers (and to which Baptists and other minority sects dissented). We argue:

In short, narrow definitions of minister—notably, laws setting educational and other credentials for ministers—were prominent among the evils to which the Religion Clauses were a response. Today, some courts are repeating this evil by effectively requiring that a minister possess “credential[s], training, or ministerial background” in order for an organization to invoke the ministerial exception. Such requirements impose civil authorities’ assumptions—almost inevitably majoritarian assumptions—that certain training or formalities are inherent in the concept of a minister.

Other 2019 work by the St. Thomas RL Clinic.  Our clinic (info here) had a productive 2019. We filed or started work on amicus briefs in 4 cases in the Supreme Court (including the minister cases above), representing Christian, Jewish, and Muslim groups. Throughout the students did great work, and through the goal was to promote (in the way kids would put it on social media) #ReligiousFreedomForAll.

              1) The Seventh Circuit upheld the validity of the federal tax provision allowing clergy to exclude housing allowances from taxable income (which equalizes religious groups that don’t own parsonages with those that do). The court cited our clinic's brief, filed on behalf of Christian and Jewish groups, which had presented various statistics and tax calculations to show how invalidating the provision would seriously harm tens of thousands of congregations, and especially harm small urban ones.

              2) In April we filed a brief (successfully) supporting certiorari in Espinoza v. Montana Dept. of Revenue, the case on whether a state court can invalidate a school-choice law (tax credits for people indirectly supporting private schools) solely on the (discriminatory) basis that the program includes religious schools.  Oral argument on the merits is Jan 22. 

              3) We’re happy that the Solicitor General urged the Court to grant review in Patterson v. Walgreen Co. and finally give teeth to Title VII's requirement that employers accommodate employee religious practice except in case of "undue hardship." Our brief, filed for Christian and Muslim organizations, documented that accommodation disproportionately protects minorities--Muslims, Jews, other Saturday sabbath observers, and others--and that the current weakness of the test disproportionately harms them.

               4) We contributed to research to help the coalition proposing the new "Fairness for All" legislation, which offers a thoughtful solution to the knotty problem of giving meaningful antidiscrimination protection for gay, lesbian, and transgender  rights and meaningful protection to the religious liberty of those conscientiously opposed to facilitating same-sex or transgender conduct. 

              5) We’re currently working on FNU Tanzin v. Tanvir, the new Supreme Court merits case where the FBI put Muslim Americans on the no-fly list for refusing to inform on fellow worshipers in what they regard as an overbroad security investigation. We'll be co-counsel on a brief of religious-liberty scholars supporting the plaintiffs' claim that they can sue individual agents for damages under the Religious Freedom Restoration Act.

Religious freedom moot court tournaments

I would like to thank the Notre Dame Law Moot Court Board students for again hosting an excellent religious freedom moot court tournament during the fall semester. The tournament was established in 2016 to bring together competitors, scholars, and practitioners from across the country to encourage legal dialogue on a religious freedom topic. The 2019 tournament, our fourth consecutive tournament at our Notre Dame campus, was made even better thanks to a generous grant from the Bradley Foundation. I feel very confident in our ability to host a first rate tournament for years to come, and I encourage all interested Law students to consider joining us in November of 2020. You can read more about the 2019 tournament here.

Speaking of religious freedom moot court tournaments, Notre Dame Law School will be involved with the 2020 International Moot Court Competition in Law and Religion. The tournament is hosted by the European Academy of Religion and is in its third year. We are thrilled that the tournament this coming March will take place at the Notre Dame Rome Global Gateway.