Mirror of Justice

New Paper: "Can First Amendment 'History and Tradition' Protect Both Sides in Polarized America?"

I've posted this new paper on SSRN. Abstract:

In recent years, religious-freedom issues have become caught up in the nation’s cycle of political and social polarization. I have argued, on my own and in concert with others, that the only way forward is to protect key interests of both conflicting sides in our major religious-freedom disputes: both Muslim and evangelical Christians, both LGBTQ people and religious conservatives. In past years, the Supreme Court has taken important steps protecting both sides—for example, protecting same-sex couples and traditionalist religious objectors to same-sex relationships. But more recently it has begun reworking significant parts of its jurisprudence about religion, government, and other issues concerning cultural conflict. While continuing to protect free exercise strongly for both institutions and individuals, it has taken a new direction in Establishment Clause cases, focused predominantly on whether “history and tradition” support a government practice or category of practices. The new approach indicates that various practices once likely to be invalidated are now likely to be upheld.

The danger is that key elements of bipartisan protection will be reversed under the auspices of the “history and tradition” approach. The new decisions have already approved some measures  exposing nonbelievers and members of minority faiths to majoritarian official religious expression and even some kinds of official coercion. Those decisions, however, might have limited effects. This Article discusses those limits and explains why the Court should not go further. It should not extend its approval of official religious expression into the public-school classroom—the issue posed by Louisiana’s recent law requiring the posting of the Ten Commandments in all classrooms. The tradition-based approach to unenumerated constitutional rights would probably would not have generated the same-sex marriage right of Obergefell; but the Court should not overturn that decision. And overall, the Court should apply “history and tradition” under the Religion Clauses with sufficient flexibility and generality to achieve the clauses’ key purposes, which include protecting people from suffering for living according to their deepest commitments and preventing the cycles of fear, resentment, and conflict that such suffering brings on. Some such flexibility in analyzing history and tradition provides the best account of the Court’s doctrine strongly protecting free exercise. Similar flexibility should apply in the doctrine protecting against establishments.

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.

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.

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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.