Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, April 26, 2020

Institutional Religious Freedom in Serving Others

I have a post, up at the Religious Freedom Institute's Cornerstone Forum, entitled "Institutional Religious Freedom Includes Freedom in Serving Others." It's about issues that are still relevant notwithstanding the recent focus on the legitimate public-health limits to religious freedom. A bit from the beginning:

Today’s most vexing problems about freedom of religious institutions in the United States concern religious nonprofits that provide social or educational services to others. Such problems, like many others, are currently superseded by the overwhelming health and economic effects of COVID-19. But the issues will return. And the services religious nonprofits provide will be important in responding to and recovering from the pandemic.

      Nonprofits pose complex religious freedom questions because they often straddle the perceived boundary between public and private. Decisions by houses of worship and decisions about clergy get very strong protection because they are regarded as private, involving ministry to the faithful, not the general public. Conversely, some religious organizations serve the public with no conflicts between their own norms and those required by law.

      Some organizations, however, employ or serve people outside their faith but also encounter religious freedom issues because their tenets clash with general laws on immigration, nondiscrimination, or other matters. Consider progressive groups that provide sanctuary or aid to undocumented immigrants, or Catholic adoption or foster agencies that decline to certify same-sex households for child placement, or religious colleges that assign student rooms by biological sex at birth. I call such organizations “partly acculturated”—they provide services of secular value to the broader culture, but some of their religious norms clash with dominant cultural values reflected in law.

      I’ve argued previously that partly acculturated activities deserve significant protection. Religious freedom includes freedom in serving others. The law should not force organizations to be either wholly unacculturated—serving only their own members—or wholly acculturated—subject to all regulations no matter how serious the clash with their beliefs.

The piece includes brief, entirely non-comprehensive evaluations of three proposed pieces of legislation addressing the conflict between nondiscrimination rights of LGBT persons religious freedom rights of institutions serving others: the Equality Act, the First Amendment Defense Act, the Fairness for All Act.

On the quick mention above of how religious institutions are vital in helping people weather the pandemic--physically, emotionally, and spiritually--Byron Johnson and Thomas Kidd have a good article in the Dallas Morning News, also summarized by RFI here. They make an important reminder in the face of all the attention to a very small number of congregations that have behaved irresponsibly.

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/institutional-religious-freedom-in-serving-others.html

Berg, Thomas , Current Affairs , Religion | Permalink