Mirror of Justice

The Anniversary of Smith

(Posted one day late)

Employment Division v. Smith was decided 34 years ago today: April 17, 1990. Someone born after Smith still couldn't assume the presidency in January 2025 after winning election this cycle--but it's getting close. And Smith set off a long chain of events: The passage of the Religious Freedom Restoration Act and its state equivalents. The switching of sides by many people on the question of religious exemptions--many conservatives becoming proponents, many progressives becoming opponents--when issues involving the sexual revolution came to dominate public debate over religious freedom. The current Court's reading of Smith in ways that are relatively protective of religious freedom. What a long strange trip it's been.

Religious Freedom, Copyright Royalties, and Court Review of Agency Determinations

The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief supporting the petition for certiorari in a case involving copyright royalties and religious freedom--which also turns out to be important concerning meaningful judicial review of agency determinations that affect First Amendment and religious-freedom rights. The Copyright Royalty Board, the federal agency that sets statutory royalties for digital transmissions of copyrighted sound recordings, has charged noncommercial webcasters (mostly religious in nature) an 18-times higher rate than public-radio-affiliated (also noncommercial) webcasters. That severe disparity raises significant issues under the First Amendment and the Religious Freedom Restoration Act (RFRA). But the D.C. Circuit, in reviewing the Board, treated the case as essentially about mere review of an agency under the Administrative Procedure Act (APA) and gave significant administrative-law deference to the agency's key determination on whether the activities of religious webcasters were comparable to those of NPR webcasters and therefore should not face such a grossly disparate rate.

We argue that courts can't abdicate their responsibilities to protect religious freedom and other First Amendment rights in this way. We use foundational cases. issued over several decades, requiring independent appellate review in First Amendment and other constitutional cases: Bose Corp v. Consumers' Union. (1984), New York Times v. Sullivan (1964), and Crowell v. Benson (1932). And we argue, for example in this summary bit, that

The question in this case is recurring and important. Many claims under RFRA arise from decisions by federal agencies; many claims under the Free Exercise Clause arise from decisions by federal or state agencies. If courts apply administrative-law deference to agencies in deciding RFRA and First Amendment questions, the result will be to eviscerate those protections.

The brief is on behalf of the Christian Legal Society (CLS) and the National Association of Evangelicals. Thanks to the students who worked on the brief--Arianna Wiinamaki and Kris Thompson--and to Steve McFarland and Laura Nammo at CLS.

Book Award for "Religious Liberty in a Polarized Age"

I'm very gratified and humbled to report that my book Religious Liberty in a Polarized Age (Eerdmans Publishing 2023) has won an award in the 2024 Christianity Today Book Awards: the Award of Merit (2d place) in the Politics and Public Life category. The awards reflect, as the CT editors' subtitle puts it, "the books most likely to shape evangelical life, thought, and culture."

I also greatly appreciate the kind endorsement from one of the judges, Katie Frugé, director of the Center for Cultural Engagement for Texas Baptists:

Religious liberty is a fundamental part of the American political order. But in many current conversations, it has taken on a controversial edge, often functioning as a flash point in our culture wars. In this thorough book, Berg argues that religious liberty, rather than being a prescription of uniformity, is both a remedy for divisiveness and an essential safeguard for genuine pluralism and cultural diversity. Religious Liberty in a Polarized Age is a must-read for all who find themselves engaging in the public square, and it gives valuable insight into the current legal and ideological landscape. 

I'm grateful to the Eerdmans editorial team. to John Witte for including it in Emory's Law and Religion series, and to many colleagues including several on MOJ for reading chapters, discussing ideas, and giving encouragement. 

I very much hope that the book will in some way fulfill the editors' statement by helping evangelicals, Catholics, and many others defend strong religious liberty in a way that is persuasive in our divided society.

Re Religion and Political Progressivism, "2023 is Not 1968"

A very interesting read from The Washington Post about the "Justins," the two Tennessee Democratic legislators who have been expelled, returned to office, etc., based on their vocal protests in the legislative chamber. They've been compared to the vocal religious leaders of the civil rights movement.

       Since their GOP colleagues voted them out of office this spring, state Reps. Justin J. Pearson (D-Memphis) and Justin Jones (D-Nashville) have quickly become 20-something icons whose style, faith and values ring some very familiar bells. They wear crisp suits, intone Jesus, see public protests as essential and define “biblical justice” as care for the poor and oppressed. ...

       But 2023 isn’t 1968, including when it comes to the relationship between religion and politics. The Justins are facing a much less religious country, including segments that are cynical and even repelled by candidates who thunder from pulpits about God being on their side. Experts say the Justins’ unusual campaigns, and the strong reaction to them, could both benefit and threaten the progressive movement of which the men are a part.

In our polarized circumstances, the sharp percentage decline in Americans' active religious identification is seen by many as a boon to movements for progressive understandings of social justice. (Religion, that conservative thing, is losing ground.) But that remains a very uncertain matter, as this article indicates, among other things because the decline of active religion has been accompanied by an intensification of the position that religion should be a private pursuit.

St. Thomas Law Dean Search

Since our former dean, MOJ-er Rob Vischer has ascended to the university presidency at St. Thomas (a belated blog hurrah to Rob!), we are now officially in a dean search at the law school. MOJ-er Lisa Schiltz co-chairs the committee; I'm a member.

Here is the position announcement on the search firm's (WittKieffer's) site. It also provides a full position profile. (I'll link to both files below as well.) The lede for the announcement:

The University of St. Thomas School of Law is seeking a Dean eager to capitalize on a pivotal moment in the Law School’s short but extraordinary history, and ready to guide it through the next stage of its emergence as a national leader in values-driven, whole-person-centered legal education and in scholarly and societal impact. In the two decades since its opening in 2001, the School of Law has outpaced all expectations, validating the hopes embedded in its mission: “The University of St. Thomas School of Law, as a Catholic law school, is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice.”

As the announcement concludes: "Review of applicant materials has begun; for fullest consideration, candidate materials should be received by September 30, 2023 and submitted through WittKieffer’s candidate portal" (buttons at the bottom of the linked site above).

If readers (interested in the position themselves, or not) have suggestions for highly qualified candidates (JD required), deeply committed to and knowledgeable about legal education and enthusiastic about the mission above, let me know by email.

Position Advertisement

Full Position/Leadership Profile

Religious Liberty in a Polarized Age (from Eerdmans)

My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher,  at Amazon, and elsewhere  It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:

Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]

       Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.

From a blog summary I did on the book:

[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....

       A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.

Get your copy for vacation reading!

 

Article Posted on the Respect for Marriage Act

Doug Laycock, Carl Esbeck, Robin Wilson, and I have posted "The Respect for Marriage Act: Living Together Despite Our Deepest Differences," on SSRN (forthcoming in the University of Illinois Law Review). First paragraph of the abstract:

The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.

During the RMA's consideration, the four of us provided an analysis to senators arguing that the religious-liberty protections in the Act were substantial and that the Act offered a chance, even a model, for a pluralistic approach that, by protecting both sides, can help put at least some limit on fear and the attendant political-cultural polarization. This Article expands greatly on that analysis.

Scholars' Comment Opposing Rescission of Education Dept.'s Student-Religious-Group Protection

(I'm returning to post on the blog after a significant hiatus caused by a bunch of other commitments!)

       The U.S. Department of Education has proposed to rescind a provision it adopted in the Trump Administration protecting student religious groups at public universities from being denied access to facilities and other benefits available to other student groups. For the notice-and-comment process, I took the lead in drafting a comment letter from a blue-ribbon group of scholars*/ opposing the rescission. The rescission would leave student religious groups protected under another (but more uncertain) regulation that applies to nonreligious groups as well. But we argue that the distinctive protection for religious groups is fully justified by the First Amendment. Summary quote:

The religious-group protection categorically prohibits a public IHE [institution of higher education] from denying a group access because of its sincerely held beliefs or practices, including leadership and membership criteria. But that categorical protection has strong support in First Amendment principles and current Supreme Court case law, for two major reasons. First, unconstitutional discrimination against religion comes in many different forms, and litigation has shown that almost any public IHE policy that denies a student religious group access discriminates in one of these ways. Second, the First Amendment also categorically guarantees religious organizations autonomy to set criteria for leadership and membership, and public IHE policies denying religious groups access regularly violate that guarantee.

 

*/ Doug Laycock, Michael McConnell, Rick Garnett, John Inazu, Michael Paulsen, Asma Uddin, and yours truly. 

Democrats for Life Brief in PA Hyde-Amendment Case

The PA Supreme Court is hearing a challenge to the state's version of the Hyde Amendment (Allegheny Reproductive Services v. PA. Dept. of Human Services, appeal from 249 A.3d 598 (Pa. Commw. Ct. 2021)). Abortion providers are petitioning the court to reverse its 1985 Fischer decision (509 Pa. 293, 502 A.2d 114) that upheld the ban on state funding of abortions (except for rape, incest, or threats to the mother's life), on grounds similar to  SCOTUS's upholding of the federal Hyde Amendment in Maher v. Roe and Harris v. McRae.

Democrats for Life of America has filled an amicus brief in support of the PA funding restriction. From the summary of argument:

DFLA files this brief to emphasize three interests that the ban on funding of elective abortion serves. These interests are important, and at the very least, are clearly valid and legitimate under rational-basis scrutiny.

     A. First, the funding ban serves the interest in protecting fetal life, which has been held to be “important” by this Court in Fischer IV and, as this Court noted, by the U.S. Supreme Court as well. Since Fischer IV, scientific advances, including ultrasound technology, have made it even clearer that the unborn child is a distinct human life during its development in the mother. These developments reinforce Fischer IV, both as a matter of stare decisis and because it is correct.

     B. Second, the funding ban serves the important, and unquestionably valid, interest in respecting the conscience of many taxpayers who believe that abortion takes an innocent human life, and that the government revenue to which they contribute should not support that practice. Although the government is not required to accommodate taxpayers’ objections by declining funding, it has discretion to do so. From the nation’s founding, our governments have accommodated taxpayers’ conscience by denying funding to various practices that violate their deeply held beliefs. Abortion-funding restrictions stand within this tradition of respecting taxpayer conscience on deeply divisive issues; indeed, the tradition is especially strong in protecting people against being forced to facilitate abortions.

     C. Finally, because abortion-funding restrictions avoid forcing taxpayers to facilitate abortion when they deeply oppose it, such restrictions make it possible to secure broad support for health and welfare-related funding in general. The government has a strong interest in maintaining the flexibility that helps build such consensus for social-welfare assistance programs. Since 1980, Pennsylvania’s ban on funding elective abortions has bolstered support for the Medical Assistance Program. Similarly, since 1976 the federal Hyde Amendment has bolstered support for federal health and welfare spending. And adoption of abortion-funding restrictions in the Affordable Care Act—restrictions with bipartisan support—were crucial to the passage of that major healthcare-reform legislation.

In section C, the brief details the crucial role that abortion-funding restrictions, and the pro-life Democrats who pushed and hard for them, played in the passage of the Affordable Care Act. (Citing former Rep. Bart Stupak's account of the events, For All Americans.) Since the ACA's passage, of course, pro-life Democrats have been decimated in Congress and state offices across the country by the combined efforts of Republicans, major pro-life groups, and anti-abortion rights groups. It's a feature of, and a contributor to, our accelerated polarization. But the arguments in section C--that a consensus in support of strong social-welfare benefits can much more easily form if taxpayers do not thereby have to fund elective abortions--are still important in a number of purplish states, like Pennsylvania.

"Protecting Free Exercise Under Smith and After Smith" (forthcoming, Cato Sup Ct Rev)

Doug Laycock and I have posted this draft law review article on SSRN (link here), with the title and journal information above. We discuss the specific implications of Fulton v. Philadelphia for current Free Exercise Clause standards under Employment Division v. Smith. But, as the abstract states,  

we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised [in her Fulton concurrence]. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.

Comments welcome.