Recent Article and Briefs: or, "How I Spent My Spring Semester (or much of it)"

Rick, thanks for keeping some content flowing on the blog during this time when others of us have been sporadic!

MOJ readers might be interested in one forthcoming scholarly paper of mine on religious liberty, and three briefs filed recent by the St. Thomas Religious Liberty Appellate Clinic in important current cases.

The paper is for a festschrift in the Journal of Law and Religion on Doug Laycock's monumental body of religious-liberty scholarship and advocacy. It continues my focus on religious liberty and polarization as laid out in my book Religious Liberty in a Polarized Age (Eerdmans). The paper notes that from the 1980s to the mid-2000s  (roughly the first two to three decades of Doug's career), the key Religion Clause question was defining (or critiquing) "neutrality toward religion" and its relation to other prominent values like religious voluntarism or church-state separation; but in the last 15 years or so, the key question has been how religious-liberty questions have become enmeshed in the broader dynamics of political-cultural conflict and polarization. So, from the abstract:

The Article shows how Laycock’s work on Religion Clause neutrality [period I] supports the effective defense of religious liberty in a polarized age [period II]. Substantive neutrality (voluntarism) provides several resources for addressing and mitigating religiously grounded polarization. Perhaps even more important, Laycock called for "aggregating" neutrality: recognizing that any policy can have differing effects on the religious choices of different relevant actors and comparing those effects with the goal of minimizing burdensome effects on religious choices overall. This approach, done with care, can take account of the effect on competing sides. And it can be extended beyond religion to take account of the comparative effects on other choices: for example, on the freedom of both same-sex couples and religious objectors. Thus the approach can be an effective means of addressing polarized conflicts by protecting the core interests of both sides.

The Article concludes with a brief discussion of whether the current Court's increasingly tradition-based approach can allow for this project of considering conflicting interests in a way that protects both sides.

 The briefs are in the following cases (great work on them by clinic students Hayden Cole and Nazeefa Nezami):

     1. Catholic Charities v. Wisconsin Labor & Industry Review Comm. (SCOTUS): This case has multiple issues pitting principles of nondiscrimination among religions and non-entanglement in religious decisions against the state's discretion to draw lines on legislative exemptions. In our brief for Christian Legal Society, InterVarsity, and other student religious groups, we connect the principles of church autonomy and denominational equality to the restrictions and discrimination that such groups face on public university and high-school campuses.  

    2. Owens v. Schuette (6th Circuit): The issue is whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) authorizes money damages as relief against state or local prison officials in their individual capacities. This is an en banc petition in a case where Notre Dame's Religious Liberty Clinic represents the inmate; SCOTUS is considering a cert petition on the issue in another case called Landor.  It's an important issue because damages are sometimes the only effective relief, either because the inmate has suffered primarily a past loss (as when prison guards destroy their religious property) or because (as here) the inmate has been transferred to another facility (or released) and thus injunctive/declaratory claims are moot. The Supreme Court has unanimously held that RFRA authorizes individual-capacity damages suits against federal officials (Tanzin v. Tanvir); our brief, for Asma Uddin and me as amici, runs through the history and context of RFRA and RLUIPA to emphasize how much these two statutes are joined at the hip, meaning that it makes no sense to reach a different result against state/local officials under RLUIPA. 

    3. Fellowship of Christian Athletes v. District of Columbia (D.D.C.): This is another brief about individual-capacity damages suits, this time opposing qualified immunity for DC public-school officials who denied FCA equal status and benefits as a student group despite a wealth of precedent holding that singling out religious student groups violates free exercise, RFRA, free speech, and the Equal Access Act. Again writing on behalf of CLS, InterVarsity, and other student religious groups, we trace the burdens that such groups, and their leaders and members, have faced around the nation and explain why holding individual officials liable provides an important deterrent to violating these rights.