Mirror of Justice

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.

"Religious Freedom and Polarization: A Cause--and a Cure?"

That's the title of a short piece I did some weeks back for the Berkley Center at Georgetown (and somehow forgot to hawk here on MOJ at the time). It talks about polarization during the Reformation and then today:

[V]igorous protection of religious liberty is intended to calm fears and reduce polarization, by giving people of fundamentally different deep beliefs ample space not just to hold their beliefs but also to live consistently with them....

       Fear of the other side likewise drives today’s polarization. How, it’s asked, could 81% of white evangelicals vote in 2016 for a man with glaring character defects? A Wheaton College survey of those Trump voters found that religious liberty worries ranked third or fourth most frequent as the chief reason for their vote—higher than abortion and LGBTQ issues. The solicitor general’s statement [in Obergefell, refusing to rule out conservative institutions being stripped of tax exemptions] and the [2016] California college bill [which would have stripped modest-income students at conservative religious colleges of their state grants] received extensive evangelical attention.

       Religious liberty can calm such existential fears and reduce polarization. But it will instead aggravate polarization if it simply replicates struggles over underlying issues. Religious liberty must be strong enough to protect unpopular views, and it must recover some bipartisan status.

Two Video Programs on Religious Liberty

1. The Murphy Institute at St. Thomas has posted video from Asma Uddin's excellent presentation, "When Islam is Not a Religion: Inside America's Fight for Religious Freedom." I was glad to moderate the session, which concerns respecting religious liberty for Muslim Americans and for everyone and is based on Asma's book of the same title. A variety of good questions from a large online audience (going online creates real possibilities for increasing outreach for organizations that are outside the Beltway hothouse). My own recent thoughts on religious freedom for Muslims, evangelical Christians, and everyone are here.

2. The Berkley Center at Georgetown sponsored a video discussion of the issues concerning  COVID-19 and religious worship and other gatherings, with Marty Lederman, Asma Uddin, Robin Fretwell Wilson, and me. Thank you to Michael Kessler for arranging and leading the discussion, to the Berkley Center for sponsoring it, and to my friends and co-panelists for a lively, productive discussion.

Church Closings During the Spanish Flu

Religion scholar David Bains, a former colleague of mine, has linked on his excellent blog ("Chasing Churches") to this article about the public-health orders closing DC churches during October 1918, the deadliest spell of the 1918-19 pandemic. 

 

When churches were ordered closed, after several other categories of entities had been closed, the association of mainline Protestant clergy adopted a resolution "cheerfully complying with the request of the Commissioners." The tone of that resolution, I suspect, reflects that that particular group of churches in that era was less suspicious of civil government, because more comfortable with their own place in the culture, than a number of Protestant churches are today (although today too, the vast majority of houses of worship have not only compiled with but have refrained from criticizing closing orders).

 

Churches did, however, move to outdoor services, although there was some controversy about that. And once the deaths began to decline, and the authorities began allowing other entities to open, clergy began to protest that they should be too, for various reasons: 

• the closings were "a certain infringement in spirit and effect of the free exercise of religious liberty";
• "[b]ecause the purposes of church assemblages are such as to entitle them to be the very last to be absolutely forbidden by the civil authorities"; and
• "In the influence of the churches upon the minds and souls of men, in quieting through strengthened faith in God the panic and fear in which epidemic thrives, the churches are potential anti-influenza workers, fit to co-operate helpfully with our doctors and our nurses."

The arguments have a more Protestant-Establishment vibe to them, as you might expect, but they overlap in concrete ways with arguments being made today.