Mirror of Justice

"Giving Our Better Angels a Chance"

Alan Brownstein (UC-Davis) and I have published the above-titled article, subtitled "A Dialogue on Religious Liberty and Equality." You can download it here. I've respected Alan's work--its carefulness, clarity, and honesty--for a long time and am very happy we've been able to do this together. From the abstract:

This essay is a collaborative effort to engage in a dialogue on church-state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we plan to discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church-state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground and provide opportunities for compromise.

It's forthcoming in The Journal of Appellate Practice and Process, a publication provided to every federal and state appellate judge in the nation. The dialogue format--each of us writing specific sections with responses from the other, rather than trying to homogenize our views in a singe text--allows us, we hope, to present disagreements clearly while also suggesting places of common ground and potential solutions.

Student Religious Groups, "Religious Discrimination," and Greek Organizations: St. Thomas RL Clinic Brief

Wayne State University deregistered the InterVarsity Christian Fellowship (IVCF) as a student group in 2018 (and asserts it could still do so now) on the ground that IVCF commits "religious discrimination" by requiring that its prospective leaders sign a statement of faith agreeing with IVCF's beliefs. Deregistration means the usual things: paying steep room-rental fees, losing place in the line for room choices, losing access to school communications channels, etc. IVCF, represented by Becket, is suing the university in federal court. 

       The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief on behalf of multiple national Christian campus groups, including the Fellowship of Catholic University Students. Our brief, on which my students Allie Cole and Garrett Stadler did initial drafting, argues first that by its nature and operation, applying the ban on "religious discrimination" to religious groups singles them out as the only groups that cannot demand that their leaders commit to the group's animating beliefs and ideology. That's a familiar argument, and (I think) utterly compelling.

       I especially want to tell others about our second argument: that because the university (among other exceptions) allows social fraternities and sororities to engage in sex discrimination, creating a gaping hole in its nondiscrimination policy,  its refusal to recognize an exception for religious groups to choose their leaders devalues religious interests and is not "generally applicable." The preference for social Greek organizations is a particularly scandalous aspect of various universities' mistreatment of religious groups. Our brief lays out the case as fully as I've seen anyone do it. Here's a part (I removed URLs from cites):

 

This exception creates a significant hole in the Nondiscrimination Policy. WSU recognizes 27 social fraternities and sororities. See Dean of Students Office: Fraternity and Sorority Life, Organizations. Together these organizations (and any others WSU recognizes in the future) are permitted to deny students of one sex or the other dozens of leadership offices, and hundreds of membership places. See Dean of Students Office: Fraternity and Sorority Life, Quick facts (WSU social Greek organizations had 550 members in Winter Semester 2019). WSU not only allows these organizations; it actively assists them in “promotion and marketing.” Dean of Students Office: Fraternity and Sorority Life, Promotion and marketing. Looking beyond these significant numbers, this Court can take judicial notice that at many colleges, Greek organizations pervasively affect campus social life and culture. Peter Jacobs, Why Fraternities Will Never Disappear from American College Life, Business Insider (Dec. 3, 2014, 11:30 AM).  By allowing—even encouraging—this gaping exception to its Nondiscrimination Policy but refusing a religious exception, WSU violates neutrality and general applicability and devalues religious groups’ interests.

 

           WSU’s defenses for its selective policy merely highlight that it devalues religion. It asserts that Greek organizations’ discrimination based on sex is not “the kind of invidious discrimination that [its] policies seek to prevent.” But when religious groups set criteria for leadership based on their religious beliefs, WSU calls that invidious. Its exceptions thus reflect WSU’s impermissible “value judgment” favoring other interests, while disfavoring religious interests, in setting leadership criteria. Fraternal Order of Police, 170 F.3d at 366....

 

           In short, single-sex social Greek organizations undercut WSU’s asserted non-discrimination interests as much as or more than student religious groups do. WSU exempts Greek organizations because it values them more than it values religious organizations. The discrimination may have an economic motivation. This Court can take judicial notice that “[f]raternity and sorority alumni are more likely to give to their colleges and are larger lifetime donors than other graduates. Especially at cash-strapped public universities, colleges rely on their housing as quasi-official dorms and would have to come up with an expensive alternative.” John Hechinger, True Gentlemen: The Broken Pledge of America’s Fraternities 112 (2017). But economic self-interest is no excuse for devaluing and disfavoring the constitutionally protected activity of religious exercise. If WSU wishes to accept the significant hole in its Nondiscrimination Policy created by its exception for Greek organizations, it must take the simple and reasonable step of allowing religious groups an exception so they can ensure their leaders adhere to the group’s beliefs. Cf. Calvary Chapel of Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Kavanaugh, J., dissenting from denial of application for injunctive relief) (“[N]o precedent suggests that a State may discriminate against religion simply because a religious organization does not generate the economic benefits that a restaurant, bar, casino, or gym might provide.”); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1229 (C.D. Cal. 2002) (rejecting argument that revenue generation is a compelling interest justifying discrimination against religious organizations).

1st Circuit Upholds Exclusion of "Sectarian" Schools

... In a panel opinion joined by David Souter (ret.), sitting by designation. Maine provides that rural students who can't access a public school can have tuition paid at a private school, but not if it's "sectarian." The CA1 permitted this, despite Trinity Lutheran Church and Espinoza, on the ground that the definition of "sectarian" means that a school (and the parents' choice of it) is disqualified from eligibility not simply because the school is religiously affiliated (religious "status"), but because the funds will be used for activity that includes religious teaching (religious "use").

That issue was formally reserved by Trinity Lutheran and Espinoza: the  Court wrote the opinions in a way that allowed a lower court to do this if  so inclined. But the status/use distinction won't, and shouldn't, hold up ultimately. For one thing, "use" for religious teaching is also religious exercise (as Justice Gorsuch has emphasized throughout). For another, denying the entire tuition benefit--which supports education of full secular value--because there's religious teaching mixed in ends up denying it based on religious character/status. The distinction collapses, as Gorsuch has also said. Doug Laycock and I have laid out these arguments fully in an Espinoza amicus brief and a new article just published in the Journal of Law and Religion.

 

It seems very likely that a majority of the Court would view the CA1 ruling as appropriate for reversal. The question is whether they want to revisit the issue so soon after Espinoza.

 

The CA1 opinion also has a striking argument that the state is paying for the equivalent of a public education and the essence of a public education includes there being no significant religious element--therefore only secular private schools should be eligible. Although the state places some baseline accreditation-type regulations on the qualifying private schools, it doesn't appear to place major regulations that ensure they're truly like the public schools. They just can't teach religion.

 

There is an argument out there, with very broad consequences, that even funding public schools only--and no private schools--discriminates against religion because part of the definition of a public school is that it can't have religion in its teaching. It's almost like the CA1 panel wants to drive the Court toward that argument.

Call for Nominations: Harold Berman Award for Excellence in Scholarship

MOJ readers: please nominate a law-and-religion paper, and/or tell others about nominating!

Tom

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     The Association of American Law Schools (AALS) Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2019 and July 15, 2020. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award.  

     Nominations should be sent to Thomas C. Berg (tcberg at stthomas dot edu), Chair of the Berman Prize Committee, by October 9, 2020. The winner will receive an award plaque and be recognized at the section’s program at the AALS annual meeting in January 2021. 

Forthcoming Article "Espinoza, Government Funding, and Religious Choice"

Doug Laycock and I have posted this paper on SSRN; it draws on but significantly expands on our brief for the Christian Legal Society and others in the Espinoza case. From the abstract:

There was nothing surprising about the [Espinoza] decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down.

But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choice and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government’s interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.

Religious Freedom in the Tumult, and in a Polarized Age

I've posted two pieces on SSRN discussing religious freedom and its connection with my current interest, political and cultural polarization. 

The first is "'Christian Bigots' and 'Muslim Terrorists': Religious Liberty in a Polarized Age," forthcoming as a chapter in a new book from Routledge Publishers. Unfortunately, the publisher locks up chapters and won't allow free posting of drafts. But any reader interested in a draft is welcome to write me at tcberg at stthomas dot edu.

[R]eligious liberty has joined the list of issues that most sharply divide partisans. By now it is well established that America is deeply, increasingly polarized between competing political-cultural outlooks. After briefly summarizing the processes of ideological “sorting,” negative polarization, and political feedback loops that intensify the polarization, this paper identifies the damage when religious liberty becomes a contributing factor in polarization. Religious liberty protection is designed to reduce people’s fear and resentment of others—which in turn fuel polarization—by making room, as much as possible, for people of fundamentally differing commitments to live consistently with those commitments. This key purpose of religious liberty will fail, however, if debate over that protection simply replicates the underlying polarization of views. If anything, current religious-liberty disputes intensify the underlying fights.

Although the religious-liberty circumstances of Muslims and conservative Christians differ, the two share important features—including the fact that others view them with hostility, as “Christian bigots” or “Muslim terrorists.” I identify parallels between the two groups and argue that these parallels support recognizing substantial protection for both.

The second article is "Religious Freedom Amid the Tumult," discussing the recent important Supreme Court decisions on religious liberty, issued amid--and connecting in various ways with--pandemic, polarization, and racial-justice protests. A bit from the abstract:

Among many lessons from today’s crises is that religion, freely chosen and exercised, is a vital aspect of human identity. Religious exercise provides individuals with strength and comfort in the stresses of a pandemic. Religious belief motivates service to others in schools and social-service agencies; credible legal threats to those organizations aggravate our already dangerous polarization. Now as much as ever, it is vital to defend religious freedom for all. Despite some mixed signals, the current Supreme Court seems willing to shoulder that task.

But to defend religious freedom credibly means recognizing rights for others too. Christian conservatives must support religious liberty and equality for Muslims as well. A credible defense of religious freedom also calls for confronting rather than denying the problems of racial inequality. And it calls for drawing careful lines so that LGBT people can participate in economic life and traditionalist religious organizations can follow their religious identity.

Espinoza and What Comes Next

Espinoza v. Montana Department of Revenue is an important win for the principle of choice in religious matters, as well as for choice-based programs in education. Its specific holding is somewhat limited, but its implications are broader. Doug Laycock and I have a piece on SCOTUS Blog analyzing the decision, drawing from our amicus brief in the case (for the Christian Legal Society, the USCCB, the Southern Baptists, the Orthodox Union, the Latter-Day Saints, and others) and from our work over the years. Our piece emphasizes a couple of points, with representative excerpts here:

First, although the decision specifically forbids only exclusions from benefits based on a school's status as religious, its reasoning points toward forbidding exclusions even when they allegedly rest on a school's religious use of the funds. Among other things,

the [status-use] distinction collapses in the context of religious K-12 education. Religious schools typically teach the same secular subjects as other schools — English, history, science, math — while also teaching a religion class or integrating relevant religious perspectives into the secular subjects. The religious elements could be characterized as religious “uses.” But if a state denies otherwise-available funds for classes on secular subjects because the school also offers these religious elements, then it goes beyond not funding religion. It imposes a penalty on the secular educational activity — potentially a large penalty, if all funds are denied — because of the religious teaching accompanying it. It penalizes the school, and those it serves, because of its religious identity, its religious functions, and some of the uses to which its money is put.

Second, we explain that equal access for religious providers to government educational benefits promotes both formally neutral treatment of religion (no religious classifications) and substantively neutral treatment (respecting voluntary choice in religious matters, minimizing incentives for or against it). Then we look to other upcoming cases where those goals may conflict; in such cases, we argue, "neutral incentives and voluntarism should be the fundamental goal." The religion clauses treat religion differently from other activities in order to promote freedom of private individuals and communities in religious matters. This is how we approach the subject of religious exemptions:

Critics have sometimes asked whether it is consistent to require equal provision of funds for religious and secular service providers while also allowing, or even requiring, exemptions for religious conduct in the face of generally applicable laws or regulations. Next term the court will take up the question of whether to overrule its decision in Employment Division v. Smith and once again require exemptions in some cases.

     If a law creates a conflict with a sincere religious practice, it prevents people from exercising voluntary religious choice and thus violates substantive neutrality. The threat of civil or criminal penalties or loss of government benefits profoundly discourages the prohibited religious practice. Exempting the religious practice from regulation eliminates that discouragement, and it rarely encourages the exempted practice.

New Cert Petitions in Title VII Religious-Accommodation Cases

As many readers know, Title VII's provision requiring employers to make "reasonable accommodation" of their employees' religious practices, when they conflict with the employer's workplace rules, suffered a major blow early on from the Supreme Court's 1977 decision in TWA v. Hardison. There the Court indicated that an employer can show "undue hardship," the statutory phrase that allows denial of accommodation, merely by showing that the accommodation would cause it something more than a "de minimis" burden. Although the statement in Hardison was dicta strictly speaking on the statute's interpretation, lower courts have followed it for more than 40 years.  As a matter of ordinary language, "anything more than de minimis" is an indefensible reading of the phrase "undue hardship." And Hardison, as so interpreted, has undermined protection for employees' religious practices, at the very least in cases involving conflicts between work rules and Sabbath observance--the precise conflict that prompted enactment of the accommodation language in 1972. Attempts to correct Hardison by new legislation have failed.

Recently, however, several justices have shown interest in revisiting Hardison. Earlier this year, when the Court denied certiorari in Patterson v. Walgreen Co., Justice Alito, joined by Thomas and Gorsuch, wrote in support of reconsidering  the "de minimis" rule in a case cleanly presenting the issue. The Solicitor General had also supported reconsidering the de minimis rule in Patterson itself. Finally, the simple textualist point against Hardison--that "undue hardship" is quite different in meaning from  "anything more than de minimis"--has taken on new force because the Court resolved the Title VII issues in the LGBT-rights cases, Bostock etc., on simple textualist grounds.  

So the issue is teed up for two new petitions filed in recent days, which present solely the "de minimis" rule uncomplicated by any other interpretive matters. Small v. Memphis Light, Gas & Water involves a Jehovah's Witness elder whose employer's rigid mandatory-overtime rule prevented him from attending both Sunday services and Wednesday meetings. Dalberiste v. GLE Associates involves a Seventh-Day Adventist employee whose offer of employment was rescinded when the company found he could not work throughout the weekends; the petition recounts that the employer gave no consideration to any of several alternatives for staffing. 

Among their arguments, both petitions emphasize how minority religious faiths raise accommodation claims far out of the proportion to their share of the population and thus suffer the most from an anemic standard. Both petitions cite a statistical analysis that my St. Thomas Religious Liberty Clinic students and I presented in our amicus brief in Patterson (filed for  the Christian Legal Society and other Christian and Muslim groups). From that brief (pp. 23-25):

These disproportionate effects appear, for example, in the cases listed in the appendix to the petition: reported religious accommodation cases decided on summary judgment motions concerning “undue hardship” from 2000 to the present....

       Muslims, a classic religious minority, constitute 18.6 percent of this large set of accommodation decisions (19 of 102), even though, according to a comprehensive 2014 study, they constitute only 0.9 percent of the population. [Citing Pew Research Center, America’s Changing Religious Landscape (2015).] Overall, claims by members of non-Christian faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians, Sikhs, and African religions) make up 34.3 percent of the accommodation cases (35 of 102), even though non-Christian faiths made up only 5.9 percent of the population in 2014 (and significantly less than that in earlier years). The percentage of cases in the appendix involving religious minorities climbs to 62 percent when one combines the various non-Christians (34.3 percent of the cases) with sects that follow the minority practice of Saturday Sabbath observance: Seventh-day Adventists (22 of 102, or 21.6 percent of 25 the cases) and other small Saturday-observing sects (6 of 102, or 5.9 percent of the cases).

Steffen Johnson and Michael McConnell at Wilson Sonsini and Jim Sonne at the Stanford Religious Liberty Clinic represent Mr. Small; Gene Schaerr and Schaerr Jaffe, Mark Rienzi and the Becket Fund, and Todd McFarland of the Seventh-Day Adventists represent Mr. Dalberiste.

Carmella on "Progressive Religion and Free Exercise Exemptions"

Angela Carmella (Seton Hall Law School), known to many here at MOJ, has posted the above-titled article on SSRN (forthcoming in the Kansas Law Review). Angela is always thoughtful, and I appreciate her subject matter here for its challenge to the assumption that religious-exemption claims are a thing for conservatives to assert and progressives to oppose. Part of the abstract:

       This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives.

       The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.

Amicus Brief for Overruling Employment Division v. Smith

In Fulton v. Philadelphia, the case about foster care, religious liberty, and LGBT nondiscrimination, the Supreme Court is (among other things) reconsidering Employment Division v. Smith. As most MOJ readers will know, for 30 years Smith has served as a precedent limiting the fundamental civil liberty of religious exercise, for everyone but particularly for a wide range of minority and unpopular faiths (which can include familiar religious minorities but also larger groups whose views are deeply unpopular in particular locations and institutional settings).

Doug Laycock and I have written, with co-counsel Kim Colby, an amicus brief arguing for overruling Smith. We filed on behalf of the Christian Legal Society and other groups Christian and Jewish. From the beginning of the summary of argument:

       I. Smith’s unprotective rule conflicts with constitutional text. When a law as applied makes a religious practice illegal, it is a law “prohibiting the free exercise [of religion],” whether or not it also has other applications.

       II. If the Free Exercise Clause doesn’t apply to neutral and generally applicable laws, it cannot serve its original purposes. Those purposes include protecting individual conscience and preventing human suffering, social conflict, and persecution.

         A. In the eighteenth century, every colony found that free exercise required exempting dissenters from oaths, military service, and other requirements that burdened their religious practices. Those laws, although neutral and generally applicable, overrode conscience, caused psychological suffering and loss of liberty or property, inflamed social conflict, and discouraged people from settling or remaining in the colony.

         B. Free-exercise exemptions are still needed today. Generally applicable laws without exemptions coerce conscience and cause Americans to suffer for their faith. In today’s atmosphere of cultural and political polarization, exemptions are needed to calm fear and resentment and reduce social conflict.

We then summarize other sections of the brief. But on the final quoted sentence above, let me quote a little from the full argument (below; cites in footnotes omitted). America's commitment to religious liberty was a response to the coercion and violence stemming from the fear- and resentment-based polarization of the 16th to 18th centuries.

Resentment and fear certainly operate in today’s political and cultural environment. Americans of different political parties now distrust each other more than at any time in the last fifty years. “[P]oliticians need only incite fear and anger toward the opposing party to win and maintain power.” “Confrontational politics” causes “voters to develop increasingly negative views of the opposing party.” Religious disagreements are an important component of this polarization.

       These developments make strong constitutional protections for religious liberty as important as ever. First, in an atmosphere of fear and distrust, people are especially likely to perceive threats to their religious practices as threats to their overall identity. Historic religious minorities fear that laws restricting their practices reflect the growing hostility of the majority. Conservative Christians fear that some applications of antidiscrimination laws pose existential threats to their institutions and to individuals in business and the professions.

       Vigorous protection of religious liberty calms polarization by reducing people’s “existential fear that a hostile majority will successfully attack their core commitments.” Protecting religious practice gives people space in civil society, not just to hold beliefs but to live by them.

       Second, negative polarization reduces the likelihood that the political process will accommodate the
needs of religious minorities. The side of the political divide that holds power often has no sympathy for the
predicament the other side faces. Culturally conservative places have little sympathy for Muslims, Native Americans, or other historic religious minorities. Culturally progressive places have little sympathy for conservative Christians. Thus, even when balanced solutions to  religious-liberty conflicts exist, the political process doesn’t reach them. In recent years, even state versions of RFRA—laws that once passed with near unanimity—have been blocked by the polarization over LGBT rights and religious liberty.