Mirror of Justice

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.

 

Definition of "Minister" Cases and Historical Background

In anticipation of the "ministerial exception" cases being argued on Monday, a reminder about our brief from the St. Thomas Religious Liberty Appellate Clinic, which shows that colonies' narrow definitions of minister, including required education credentials, helped spur founding-era religious-liberty protests by Baptists and others, ultimately contributing to adoption of the First Amendment. There is a little more scholarly detail in this article by my students, Nathaniel Fouch and Erik Money, and me.

Religious-school teachers who have significant functions in teaching religion classes or religious approaches to other subjects, or in planning, leading, or overseeing religious exercises, fit within the proper definition of "minister"--regardless of whether they have a ministerial training or formal title as the 9th Circuit required in these cases. Founding-era religious-liberty objections ran specifically against  credentialing requirements that prevented organizations from extending leadership to laypersons with the gifts and commitment to teach or lead in religious matters.

In his "Appeal to the Public for Religious Liberty" (1773),Isaac Backus, leader of the Massachusetts Baptists, attacked New England colonial laws that required “each parish to settle a minister” but then disqualified teachers who lacked the government’s preferred training: a college degree. The laws, Backus said, violated the principle that God “gives gifts unto men in a sovereign way as seems good unto him." Religious groups, not the civil judiciary, should determine the relevant gifts, talents, and credentials for their teachers and leaders.

Institutional Religious Freedom in Serving Others

I have a post, up at the Religious Freedom Institute's Cornerstone Forum, entitled "Institutional Religious Freedom Includes Freedom in Serving Others." It's about issues that are still relevant notwithstanding the recent focus on the legitimate public-health limits to religious freedom. A bit from the beginning:

Today’s most vexing problems about freedom of religious institutions in the United States concern religious nonprofits that provide social or educational services to others. Such problems, like many others, are currently superseded by the overwhelming health and economic effects of COVID-19. But the issues will return. And the services religious nonprofits provide will be important in responding to and recovering from the pandemic.

      Nonprofits pose complex religious freedom questions because they often straddle the perceived boundary between public and private. Decisions by houses of worship and decisions about clergy get very strong protection because they are regarded as private, involving ministry to the faithful, not the general public. Conversely, some religious organizations serve the public with no conflicts between their own norms and those required by law.

      Some organizations, however, employ or serve people outside their faith but also encounter religious freedom issues because their tenets clash with general laws on immigration, nondiscrimination, or other matters. Consider progressive groups that provide sanctuary or aid to undocumented immigrants, or Catholic adoption or foster agencies that decline to certify same-sex households for child placement, or religious colleges that assign student rooms by biological sex at birth. I call such organizations “partly acculturated”—they provide services of secular value to the broader culture, but some of their religious norms clash with dominant cultural values reflected in law.

      I’ve argued previously that partly acculturated activities deserve significant protection. Religious freedom includes freedom in serving others. The law should not force organizations to be either wholly unacculturated—serving only their own members—or wholly acculturated—subject to all regulations no matter how serious the clash with their beliefs.

The piece includes brief, entirely non-comprehensive evaluations of three proposed pieces of legislation addressing the conflict between nondiscrimination rights of LGBT persons religious freedom rights of institutions serving others: the Equality Act, the First Amendment Defense Act, the Fairness for All Act.

On the quick mention above of how religious institutions are vital in helping people weather the pandemic--physically, emotionally, and spiritually--Byron Johnson and Thomas Kidd have a good article in the Dallas Morning News, also summarized by RFI here. They make an important reminder in the face of all the attention to a very small number of congregations that have behaved irresponsibly.

Mississippi Case on Worship Services, In-Person versus Drive-In

A federal district judge in Mississippi who's handled a couple of cases about restrictions on religious gatherings writes an opinion setting forth a generally sensible distinction between in-person services (still too risky at this point) and drive-in services with the window cracked in the car enough to hear the sermon/homily or other proceedings (some risk but outweighed by the importance of free exercise of religion). As "re-opening" proceeds and more and more establishments open, it will probably become more complicated to justify prohibitions on small in-person religious gatherings practicing social distancing, but the nature of religious gatherings, and the difficulty of fully enforcing social distancing in them, may provide a justification for a while.

In noting that drive-in services, while protected, are still not "risk-free," the district judge writes:

While it may be imagined that many attendees of such services would be family members who have already been exposed to each other, that will not always be the case. Indeed, it seems quite likely that, as with regular church services, many such attendees will be elderly parishioners who require the assistance of friends or non-resident family members to take them to the service. It is well known that the Covid-19 virus disproportionately kills elderly individuals, and it may therefore be assumed that, if the holding of such “drive-in” services becomes a nationwide trend, that a significant (and possibly large) number of deaths will result. This court believes that preachers and parishioners would be well advised to take this into consideration when deciding whether or not to hold or attend such services.

The judge does not make clear whether, in saying that these risks exist but aren't sufficient to justify legal bans on drive-in services, he is saying (a) there won't be enough such cases of transmission to elderly persons (and eventually deaths) to warrant entirely shutting down drive-in services for everyone, or (b) those cases would result from the person's own voluntary choice to attend the service (and paternalistically overriding her religious choice as to her own health is not a sufficient interest), or (c) some combination of the two. (Obviously, if an elderly resident traveled from and back to a nursing, long-term care, or assisted-living community, there could be more than just her health at stake: some nursing homes have prohibited elderly residents from returning once they leave the facility for any reason unless they're quarantined first.)

Ministerial Exception Article, and Other Work from St. Thomas Religious Liberty Clinic

Originalist article and brief on ministerial exception.  My students Nathaniel Fouch and Erik Money and I have just published a piece in the Federalist Society Review. It's Fouch, Money, and Berg, "Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception." (PDF version here.) It arises from the two cases the Supreme Court just agreed to hear, St. James School v. Biel and Our Lady of Guadalupe School v. Morrisey-Berru., and an amicus brief that the St. Thomas Religious Liberty Appellate Clinic filed--with Nathaniel and Erik as student drafters--supporting certiorari (successfully) in the Morrisey-Berru case.  The article expands on the brief but also reflects our personal views rather than the views of the amici we represented (although the views of course are very similar).

The article and brief criticize the Ninth Circuit's reasoning in these cases that religious-school teachers teaching religion classes, who had other significant religious functions, were nevertheless not "ministers," and thus not within First Amendment protections for the schools, because they did not have ministerial training, ordination, or other "credential[s]." We argue that this reasoning violates basic Religion Clauses principles that prohibit discrimination among religious groups/polities and judicial second-guessing of religious organizations' self-understanding. Most centrally, we have an originalist argument, pointing  to 18th-century colonial laws in New England and Virginia that set educational and other credentials for ministers (and to which Baptists and other minority sects dissented). We argue:

In short, narrow definitions of minister—notably, laws setting educational and other credentials for ministers—were prominent among the evils to which the Religion Clauses were a response. Today, some courts are repeating this evil by effectively requiring that a minister possess “credential[s], training, or ministerial background” in order for an organization to invoke the ministerial exception. Such requirements impose civil authorities’ assumptions—almost inevitably majoritarian assumptions—that certain training or formalities are inherent in the concept of a minister.

Other 2019 work by the St. Thomas RL Clinic.  Our clinic (info here) had a productive 2019. We filed or started work on amicus briefs in 4 cases in the Supreme Court (including the minister cases above), representing Christian, Jewish, and Muslim groups. Throughout the students did great work, and through the goal was to promote (in the way kids would put it on social media) #ReligiousFreedomForAll.

              1) The Seventh Circuit upheld the validity of the federal tax provision allowing clergy to exclude housing allowances from taxable income (which equalizes religious groups that don’t own parsonages with those that do). The court cited our clinic's brief, filed on behalf of Christian and Jewish groups, which had presented various statistics and tax calculations to show how invalidating the provision would seriously harm tens of thousands of congregations, and especially harm small urban ones.

              2) In April we filed a brief (successfully) supporting certiorari in Espinoza v. Montana Dept. of Revenue, the case on whether a state court can invalidate a school-choice law (tax credits for people indirectly supporting private schools) solely on the (discriminatory) basis that the program includes religious schools.  Oral argument on the merits is Jan 22. 

              3) We’re happy that the Solicitor General urged the Court to grant review in Patterson v. Walgreen Co. and finally give teeth to Title VII's requirement that employers accommodate employee religious practice except in case of "undue hardship." Our brief, filed for Christian and Muslim organizations, documented that accommodation disproportionately protects minorities--Muslims, Jews, other Saturday sabbath observers, and others--and that the current weakness of the test disproportionately harms them.

               4) We contributed to research to help the coalition proposing the new "Fairness for All" legislation, which offers a thoughtful solution to the knotty problem of giving meaningful antidiscrimination protection for gay, lesbian, and transgender  rights and meaningful protection to the religious liberty of those conscientiously opposed to facilitating same-sex or transgender conduct. 

              5) We’re currently working on FNU Tanzin v. Tanvir, the new Supreme Court merits case where the FBI put Muslim Americans on the no-fly list for refusing to inform on fellow worshipers in what they regard as an overbroad security investigation. We'll be co-counsel on a brief of religious-liberty scholars supporting the plaintiffs' claim that they can sue individual agents for damages under the Religious Freedom Restoration Act.

Fairness for All Legislation; Religious Liberty Scholars' Supporting Letter

Today the federal "Fairness for All" bill was introduced; it aims to give significant protection to both LGBT nondiscrimination rights and traditional believers' religious-freedom rights.  Full information about the bill here. It is already being attacked from both sides of the ongoing, polarizing culture war for which this issue provides such fuel. For reasons I and others have long articulated, neither side is going to prevail in without protracted conflict that will continue to harm (1) the cause of traditional religious faith, (2) LGBT people's basic  equal treatment in significant parts of the country, and (3) the bonds that keep America together.

The bill is not perfect, but it would be a major step forward. Carl Esbeck, Doug Laycock, Robin Wilson, and I have joined a letter supporting the bill. Here is the text of our letter. (Update: It's also available on the FFA coalition's website and here.)

+++++++++++

December 6, 2019

We are constitutional law scholars who have studied, taught, and written about the law of religious liberty for decades. All of us have persistently argued for religious liberty in legislatures and in the courts. Most of us have also argued for LGBTQ rights in legislatures, the courts, or both.

We have long been concerned about legal clashes between those who cherish the fundamental right to religious liberty and those who advocate new legal protections for the civil rights of LGBTQ people. These conflicts have led to increasingly polarized positions in which progress is blocked for both sides. Many Americans think that traditional believers seek a general “license to discriminate” and that hostility to the LGBTQ community is the public face of Christianity. Many traditional believers think that the LGBTQ community and its supporters are determined to destroy their institutions, deprive them of their rights, and confine them to hidden and wholly private corners of the society.

Neither side’s perception of the other is accurate, but the perceptions are real, and they have done much damage to traditional believers, to the LGBTQ community, and to the larger society. Same-sex marriage is protected from interference by government, but in about half the states, same-sex couples can still get married on Saturday and discover that one or both of them has been fired on Monday. Believers with conscientious objections to assisting with same-sex weddings still fear being forced to surrender their consciences or close their businesses in the other half of the states, and churches and other religious organizations fear intrusive regulation or loss of tax exemptions everywhere, whether from blue states or federal agencies.

There is a better way. The proposed Fairness for All Act is balanced civil rights legislation that equitably protects the rights of both communities. It broadly protects LGBTQ persons in employment, housing, credit, public accommodations, federally assisted programs, public facilities, jury service, refugee resettlement, and marriage recognition, and it offers protection against bullying and retaliation. It broadly protects religious institutions and individual believers in practice, doctrine, conscience, and institutional integrity. It protects tax exemptions; it protects small businesses and medical professionals; it greatly strengthens accommodations for religious employees. It protects free speech in the workplace for both supporters and opponents of same-sex marriage.

Both traditional believers and the LGBTQ population would have far more protection under this bill than they have under existing law, and far more protection than they have any reasonable prospect of enacting without this bill or some similar negotiated solution. The experience in Indiana with attempts to enact a state Religious Freedom Restoration Act, and less publicized failures in Georgia, Michigan, Ohio, and West Virginia, show that except possibly in the reddest states, the religious community cannot pass additional religious liberty legislation without making adequate provision for LGBTQ rights. It is equally clear that LGBTQ advocates cannot pass gay-rights legislation in Congress or in red states without making adequate provision for religious liberty. No state has enacted a new statewide law against sexual-orientation discrimination since Colorado in 2007—with one telling exception. The deep red state of Utah was able to enact statewide protections for sexual orientation and gender identity in housing and employment, but only because it protected religious liberty in those domains in the same bill.

LGBTQ people still face discrimination and need protection now, not after some imagined political realignment far in the future. Many of these cases arise in secular and nonsexual contexts where there is no plausible claim that religious faith is the reason for discriminating. Few Americans, if any, sincerely believe that God wants LGBTQ persons to be unemployed, homeless, or without access to basic goods and services. But all kinds of discrimination against LGBTQ people are entirely legal under federal law and in about half the states.

More than half of Americans live in jurisdictions where state or local laws already protect LGBTQ people from discrimination. But these laws do not strike an adequate balance with religious liberty. Most state-law protections were enacted before the Supreme Court’s marriage decisions and therefore do not address the most religiously sensitive conflicts. This bill addresses some of those conflicts; it leaves others to state law.

Some traditional religious believers would rely on protections in regulations recently issued by the Trump Administration. But these regulations offer no protection for LGBTQ rights, some of them are subject to challenge as lacking statutory authority, and all of them will likely be withdrawn by the next Democratic President as quickly and easily as they were issued. Legislation can also be amended, but doing so is far more difficult, requires a far more elaborate process, and usually requires at least some votes from both political parties. Reliance on the courts is deeply uncertain for everyone involved, but for the foreseeable future the courts are especially unpromising for advocates of LGBTQ rights.

The Fairness for All Act has been carefully negotiated by representatives of the traditional religious community and of the LGBTQ community. It comprehensively addresses the issues, and it addresses them in the context of current law. No negotiated solution is perfect from the perspective of either side. But the negotiated solutions in this bill are well thought out and carefully drafted, and as we said, they would make both the LGBTQ community and traditional faith communities far better off than they are today. In putting together complex legislation, there will always be provisions we might do a little differently, but the interested groups should not let the perfect be the enemy of the good.

The nation’s deep division on these issues is aggravating polarization and contributing to gridlock more generally, and it is making lasting progress impossible for either side. We urge Americans of good will and of all views on these issues to support a negotiated solution. It would be a huge advance for both sides.

Of course we write in our individual capacities as scholars; none of our institutions takes any position on the bill or the issues discussed in this letter.

 

                                                                                          Thomas C. Berg

                                                                                          James L. Oberstar Professor of Law and Public Policy

                                                                                          University of St. Thomas (Minnesota)

 

                                                                                          Carl H. Esbeck

                                                                                          R.B. Price Professor Emeritus of Law and

       Isabelle Wade and Paul C. Lyda Professor Emeritus of Law

​                                                      University of Missouri

 

                                                                                          Douglas Laycock

                                                                                          Robert E. Scott Distinguished Professor of Law

                                                                                          University of Virginia

                                                                                                      and

                                                                                          Alice McKean Young Regents Chair in Law Emeritus

                                                                                          University of Texas

 

                                           Robin Fretwell Wilson

                                                                                          Roger and Stephany Joslin Professor of Law

                                                                                          University of Illinois Urbana-Champaign