Mirror of Justice

"Religious Freedom and Nondiscrimination" Article

I’ve published a new article, Religious Freedom and Nondiscrimination, based on an address at Loyola University-Chicago’s symposium on “The Question of Religious Freedom: From John Courtney Murray and Vatican II to the Present.” The symposium papers (vol. 50, issue 1) are from an excellent list of people, including MOJ-friend Kathleen Brady, the leading theological ethicist Robin Lovin, Loyola’s Miguel Diaz (who chaired the event), Leslie Griffin, and others.

My piece can be downloaded at SSRN; here is the abstract:

      This essay explores two theses about the relationship between religious freedom and nondiscrimination. First, nondiscrimination is a crucial component of religious freedom: such freedom must be equal for all religious positions. Religious freedom for some faiths more than others is not truly religious freedom: rather, it is a policy for advancing the favored faiths or their sociopolitical goals. We see this tendency operating today, for example, in that some conservatives speak strongly of religious freedom but oppose equal freedom for Muslims. The essay discusses (examining the Trump travel ban and other disputes) why that attitude is wrong in principle and misguided, as a matter of prudence, for social conservatives' own religious-freedom claims. The essay also discusses the prevalence of hostility toward conservative Christians.

       Second, religious freedom is a value independent of nondiscrimination. Equality for various faiths is little comfort without a baseline guarantee of actual freedom, including room to exercise religion aspects of life beyond worship: charitable work and daily life. Moreover, sometimes the values of religious freedom and nondiscrimination come in conflict: when they do, we must give weight to both of these important values, and in particular, not simply subordinate the value of religious freedom to the value of nondiscrimination. The essay gives reasons for protecting religious freedom as well as nondiscrimination, outlining parallels between the constitutional claims of LGBT persons and those of religious objectors to same-sex relationships. Finally, the essay suggests means for giving substantial protection to both rights.

"Freedom to Serve" Book Chapter

I’ve published a chapter in the excellent new book edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and The Prospects for Common Ground (Cambridge University Press 2018). The chapter is titled “Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good.” The chapter can now be downloaded at SSRN; here is the abstract:

Recently, religious organizations seeking protection from government restrictions have emphasized that they seek “freedom to serve” others in their anti-poverty, social-service, healthcare, or educational work. The U.S. Catholic bishops have made that phrase central to their campaign for religious liberty in disputes over organizations’ objections to same-sex marriage, the Obama administration’s contraception mandate, and other rules. This argument, defending religious freedom based on its contribution to social good, is worth examining in detail. Although the “common good” argument raises complications, this Chapter asserts that when properly defined, the argument reflects a legitimate, indeed important strain in America's tradition of religious-freedom rights. In a roughly analogous way, the chapter asserts, constitutional rights to same-sex-marriage found support in considerations of the common good as well as individual autonomy. Recognizing this parallel, and others, between marriage rights and religious-freedom rights might encourage us to give weight to both. The chapter then catalogs the contributions of religion and religious organizations, responds to objections that may be raised, and suggests principles for the proper scope of religious freedom in light of other interests.

Cert Petition Filed in Religious Accommodation Case

A cert petition has been filed in Patterson v. Walgreen Co., a potentially important case under the religious-accommodation provision, section 701(j), of Title VII. And St. Thomas Law's Religious Liberty Appellate Clinic, which I supervise, has filed an amicus brief on behalf of Christian and Muslim organizations supporting the petition.

Patterson, a trainer for workers on Walgreen's phone-assistance line, was fired after he was unable to do an emergency training session on Saturday, his Sabbath (he is Seventh-day Adventist). But his unavailability on that occasion caused no harmful consequences: the training session went forward the following Monday and Walgreen's met the schedule it had articulated for the new phone-call policies. Instead, Walgreen's articulated that it must fire Patterson because this one-off situation would start recurring more regularly in the future, since its other trainer (who had swapped shifts with Patterson in the past) was going to move to a different company because Walgreen's was planning to sell that division in a sale to take place several months down the line. As a result, Patterson was fired at that moment based on a projected set of circumstances beginning nine months later.

The cert petition argues for review on the ground, among others, that the circuits are split on whether the employer may use such speculative future harms to meet its burden of justifying a refusal of accommodation: i.e. showing the accommodation would cause "undue hardship [to its] business." More broadly, while the accommodation provision has sometimes provided protection for employees' religiously-based dress and grooming,  it's been ineffective at protecting varying Sabbath observances because the Supreme Court has interpreted the burden of showing "undue hardship" to require only a showing of a "more than de minimis harm." TWA v. Hardison, 432 U.S. 63 (1977). As the third question presented, the cert petition calls for reconsidering Hardison's interpretation.

Our amicus brief for Christians and Muslims explains how "[a]llowing employers to rely on predicted future events creates at least three problems that undermine the effectiveness of the [accommodation] provision":

First, it allows employers to fire or otherwise adversely affect employees now based on events that might never occur—events that might never necessitate the firing. Second, reliance on future, hypothetical events makes it much more difficult to identify specific accommodations that might be available at the time the conflict arises. Third, reliance on speculative or hypothetical harms relieves the employer of the duty to search for reasonable accommodation—and at the worst, may incentivize employers to dream up scenarios of future hardship.

In addition, we support the petition's argument that the Hardison interpretation of "undue hardship" should be reconsidered, based on several grounds involving the statute's text and purpose:

      The ordinary meaning of “undue hardship” at the time the accommodation provision was enacted (1972) ...  is irreconcilable with a standard of mere “de minimis” cost....

      [T]he premise of the de minimis standard has been undercut by [the] Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ... [which] makes clear [unlike Hardison] that [the accommodation provision] requires protection against the effects of a religion-neutral employer policy....

      A weak interpretation of [the] accommodation provision is particularly harmful to religious minorities, who are particularly likely to come in conflict with formally neutral employer policies reflecting the majority’s norms.

Aaron Bostrom, class of 2020, did an excellent job drafting significant portions of the amicus brief.

On Masterpiece--and Romer--for Cato SCT Review

I have an essay (available here) in the new Cato Supreme Court Review (the issue reviewing the 2017-18 term), entitled "Masterpiece Cakeshop: A Romer for Religious Objectors?" It explores the idea that Masterpiece was written--for the moment--as a narrow decision, based on official decision-makers' hostility in the particular case rather than on a broad assertion of religious objectors' free exercise or free speech rights, and in that sense is similar to Romer v. Evans (1996), the first gay-rights ruling. Romer struck down Colorado's Amendment 2 on the ground that it reflected animus toward gays and lesbians; the Court thus avoided (and did for almost 20 years) saying anything about heightened scrutiny for gay-rights claims.

From the abstract:

This essay examines Masterpiece and the unresolved religious-liberty questions through the lens of the similarities with Romer (and potentially with the later, more-expansive gay-rights rulings). Part I describes the resemblances between the two rulings, among other things that in both, animus or hostility serves as a “minimalist” holding that avoided committing to broad implications for future cases. But that modesty comes with a cost: To find animus, the Court must denounce the decision-makers in the immediate case as especially unjustified, even malicious, and that conclusion can cause equal or greater anger compared with broader holdings, such as declaring a suspect classification or fundamental right. In the final parallel with Romer, I sketch how the finding of unequal, hostile treatment in Masterpiece might provide the basis for further protection of religious traditionalists’ right to decline to facilitate same-sex marriages, at least in an appropriately limited set of circumstances. [E.g. solidifying Masterpiece's holding that when the state allows social liberals to refuse to provide goods or services with messages that offend against their conscience, it must also allow religious conservatives to refuse in analogous circumstances. And perhaps future rulings adopting more religion-protective readings of Employment Division v. Smith--TB]

       I then turn to general parallels between gay-rights and religious-freedom claims—parallels that call for sympathizing with and protecting both sides. Those parallels depend less on the improper motives or attitudes (animus/hostility) of the regulators, and more on the seriousness of the interests and predicaments of those harmed by government action (same-sex couples denied marriage rights, religious objectors penalized for following their beliefs). Developing sympathy for their respective predicaments, I argue, is more likely to calm our society’s serious problem of negative polarization—while condemning others for animus is more likely to aggravate such polarization. That in turn, I suggest, makes an argument for relying on heightened-scrutiny rationales in these cases, rather than findings of animus or hostility.

Catholic Sorting

On Facebook the other day, I wrote (I think it was a conversation with Rick!) that the Catholic parishes had preserved a greater element than Protestant congregations of bringing people together across political/cultural divides, because the parishes are more geographical and you don't have the menu of options (like Protestants) do to fit your personal taste. Of course, then I read this.

"As traditional parishes decline, 'personal parishes' find new interest" (National Catholic Reporter)

       Increasingly churchgoers are bypassing neighborhood parishes in favor of faith communities that deliver what they are seeking.

       Catholic bishops are recognizing the phenomenon and are increasingly willing to designate "personal parishes," communities formally recognized by bishops for particular groups of Catholics versus traditional parishes which minister to Catholics in a geographic territory.

Trump and Religious Freedom: Short-Term and Long-Term

Late last week in a rally, President Trump dissed George HW Bush's "thousand points of light" phrase, which Bush used in the 1988 campaign as an image for volunteerism for the common good in a civil society:

"What the hell was that, by the way, thousand points of light? What did that mean? Does anyone know," said Trump. "I know one thing: Make America Great Again, we understand. Putting America first, we understand. Thousand points of light, I never quite got that one."

Commentators focused on how Trump's riff was mean to HW. But it and other riffs like it are harmful to religious freedom. Granted, Trump's Supreme Court picks are more likely than those of other presidents (e.g. HRC) to take religious freedom seriously across the range of applications; that's a major reason, it seems, why evangelical Christians supported him. (All of the short-listers for the new seat give strong indicia of supporting religious freedom. And I say this even though I strongly believe the Court dropped the ball on the travel ban--because my guess is these nominees will be pretty strong on Muslim freedom outside the immigration context.) 

But however significant the short, even medium, -term benefit to religious freedom from a Court appointment, one must also reckon with the long-term harm to religious freedom that Trump has done by encouraging the undercutting of many of the reasons a society would care about protecting religious freedom. Last week's riff dissed the very concept of serving the common good through a plurality of institutions in a diverse civil society. Trump is beckoning conservative Christians, especially evangelicals--who seem to be quite willing to follow his pied piping--to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others. That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.

This point is an application not only of multiple Mike Gerson columns, but also of Marc and Kevin's fine Times op-ed of last week. The culture will matter in more pervasive, long-lasting ways than the new justice(s). And evangelicals are risking collaborating with Trump in irreversibly degrading their own culture.

Piece on Travel-Ban Decision

I've posted a piece at America critiquing the travel-ban decision. A bit:

       [T]here was room in [the immigration] precedents for the court to write a narrow opinion focusing on Mr. Trump’s uniquely blatant and irresponsible statements that suggested his intent as the sole decision-maker. True, such a ruling would have to have been narrow, to keep from setting a precedent for serious intrusions on executive authority in future cases.

       But the risks from such an opinion would have been worth taking. The president’s statements were virtually unprecedented in modern times in explicitly labeling all members of a religion a danger to the nation....

       And the consequences of the statements extend [beyond those directly connected to immigrant applicants], poisoning the culture in the country for Muslims already here. Reports of anti-Muslim vandalism and other crimes have spiked in the wake of Mr. Trump’s statements.

       The consequences are also harmful for religious freedom as a general principle. Republican support of Mr. Trump’s hostility to Muslims from the beginning (one March 2016 poll showed that 71 percent of Republican voters backed a temporary “total and complete shutdown” of Muslims entering the United States) has helped accelerate the perception that religious freedom is nothing more than a tool for each side to use or discard according to what supports its preferred policy positions. Progressives are selective, too, in denigrating the religious freedom of social conservatives. To preserve religious freedom as a principle, not a tool, we must enforce it for all.

Among the sources of comfort:

       [G]iven the court majority’s clear emphasis on the immigration context, we can have reasonable confidence that courts will still act decisively to forbid official animus against Muslims in domestic matters: hostile local resistance to mosques, officials’ attacks on copies of the Quran and so forth. The travel ban decision specifically endorses, and must not be read to undermine, that bedrock principle.

Religious Condemnation of Family-Separation Policy

    Thankfully, the administration's policy of separating migrant children from parents at the border--including in the case of families who present themselves as asylum seekers [SEE UPDATE BELOW]--is coming under condemnation from religious leaders, including several who have supported President Trump in most other ways. The Catholic bishops, unsurprisingly, took the lead.

    There have also been good critical analyses--some with nuance--of Jeff Sessions' invocation of Romans 13 as a defense for the policy. From The Atlantic:

       Romans 13 is significant to American history because it played a critical role in the American Revolution. Loyalists who favored obedience to King and Parliament quoted Romans 13 for obvious reasons. “Let every soul be subject unto the higher powers,” the text read in the language of the time....

       But surprisingly, political and religious leaders who favored the American Revolution were even more eager to quote Romans 13. Their reasoning turned on the justification that Paul gave for obeying government. Sessions said that government was created “for the purpose of order,” but Revolutionary clergy quoted Paul directly: “Rulers are not a terror to good works, but to the evil.” In a study of how the Bible was used in the American Revolution, the historian James Byrd argues that “American patriots” rejected against the notion that Romans 13 required unconditional obedience. Instead, he wrote, they preached from the text “to deny that Paul gave kings the right to be tyrants.”

And following up, evangelical historian John Fea:

       Romans 13 teaches that Christians should submit to government,  but it does not seem to require unconditional submission.  It is not an easy verse to apply and we must be very careful about applying it universally....

       Is the stripping of children from their families at the Mexican border atrocious enough for Christians to violate Romans 13?  I would say yes.  Of course this entire point is moot because, as far as I understand it, there is no American law requiring ICE officials to take children away from their parents. [emphasis added]

UPDATE: Good point from Rick about taking parental rights seriously in all contexts. And I'll amend to language closer to his for describing most of the cases: "the US government is separating families who seek asylum in the US by crossing the border illegally." Although in some cases it appears to have been applied even to persons who present themselves at a port of entry and claim asylum consideration.

Comey and Moral-Theology Debates

     I'll make this a quick post, without detailed analysis or links to supporting news stories. The Inspector General's Report for DOJ seems to confirm that Jim Comey decided to disregard department rules by commenting in July 2016 on the decision not to prosecute Hillary Clinton. (Having then commented in July, he felt he had to notify Congress in October that the investigation had been  reopened.) Giving him the benefit of the doubt, he decided to disregard the rules because he thought that: (a) there was a leadership void at the top of the Department (Attorney General Lynch's partial withdrawal, although not recusal, from the case); (b) Clinton was going to be elected President; and (c) failing to comment on the decision--and failing to give notice of the (briefly) reopened investigation--would undermine her credibility as president by opening the door for  people to argue that the department had given her favoritism and a whitewash. We now know that Comey substantially erred in predicting the consequences of his acts, and perhaps in analyzing the state of the election in the first place.

      It seems possible for this episode to become an example used in ethics courses, religious (moral-theology) or secular, to explore issues concerning deontological versus consequentialist (or proportionalist) ethics. One major criticism against the latter is that we lack the ability--at least, we overestimate our ability--to predict the consequences of actions. Thus we should stick with rules that reflect either deductions from foundational premises or (in rule-consequentialism) the accumulated wisdom about what consequences will likely follow. Comey's misjudgment, then,could serve as a dramatic example for this argument.

     Of course, that doesn't end the debate about "following the rules." There still may be cases in which the rules must be disregarded, even if Comey was wrong to think this was one of them. Segregation and civil disobedience present a strong example where positive law had to give way to higher-law principles. But I don't know if even Comey claims this was that sort of case (although his book, which I haven't read, is called A Higher Loyalty).

     But this also doesn't end the debate over "rules vs. consequences." There are, of course, many times in which two concrete but conflicting rules both might apply to a situation; we have to decide what the scope of each rule is. Some moral theorists, like R.M. Hare in Moral Thinking, have identified this as the function of consequentialism/utilitarianism: to resolve conflicts between prima facie duties.

     The previous two paragraphs are just ruminations by a non-expert in moral philosophy and moral theology. The main point I wanted to make is that Comey's misjudgment might be used, in ethics/moral-theology education or debates, as a prime example of the problem of uncertainty in predicting consequences. Comey's errors in prediction, and thus in judgment, were very substantial--but I don't think they were so substantial that they keep his actions from being a useful example.

"Masterpiece Cakeshop and Protecting Both Sides," at Take Care Blog

Expanding on our previous analysis of Masterpiece Cakeshop at SCOTUS Blog, Doug Laycock and I now have a piece up at the Take Care blog. As many MOJ readers know, the Supreme Court found the state adjudicators had displayed impermissible  "hostility" to the bakers' religious beliefs, as shown by (1) over-the-top statements by commissioners about Phillips' belief and position and (2) the state's differential treatment of three other bakers who were allowed to refuse to make a cake with an anti-same-sex message on it, while Phillips was not allowed to refuse to design a cake celebrating a same-sex wedding.

In our Take Care piece, among other things, we (1) discuss how the Court's use of decision-makers' statements in Masterpiece should/could affect the analysis on Trump's travel ban, with the blatant anti-Muslim statements leading up to it;  (2) answer defenses that have been offered for the different treatment of the two sets of bakers; and (3) defend a broader reading of the leading free exercise cases, Lukumi and Smith--one that goes beyond prohibiting clear animus toward, or targeting of, religion. Here's some of the first point:

Trump’s anti-Muslim hostility was particularly unambiguous; and with a presidential order only one person’s intent is at issue, which makes his statements even more probative than those of an individual on a multi-member body. We do not know if the Court will so rule. The immigration context adds doctrinal complications; and if the majority believes that it should infer bad motive only from statements by adjudicators, not policymakers, an executive order falls in the latter category. But the Court is willing to infer discriminatory motive from legislative statements in race- and sex-discrimination cases under the Equal Protection Clause; it’s hard to see why religious-discrimination cases should be different.

       It is vital in today’s circumstances to condemn official hostility to any religion. In polarized America, too many people show tolerance for conservative Christians but not for Muslims. But that does not justify intolerance the other way; Masterpiece was right to condemn hostility toward Phillips’ traditionalist beliefs.