Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, May 20, 2020

"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.

May 20, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

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.

May 20, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Tuesday, May 12, 2020

Keeping an Eye on Holt v. Kelley

As recent posts have noted, there is no shortage of religious freedom cases at the Supreme Court this May.  However, another significant religious freedom case continues its fight in the Eastern District of Arkansas.

Gregory Holt has returned to federal court after his historic success in Holt v. Hobbs, now more than five years ago.  Once again, he is represented by Professor Doug Laycock.  Holt now claims that the Arkansas Department of Corrections failed to accommodate his Islamic religious practices by unlawfully preventing its Muslim inmates from observing separate prayer services according to their faith and movement.  Instead, prisoners are effectively forced to choose between combining their religious services with other Islamic groups or abstaining from group services altogether.

Specifically, Holt claims that the Department of Corrections violated RLUIPA, as well as the First and Fourteenth Amendments, by prohibiting separate Jumu’ah services for its inmates.  Practitioners of various Islamic groups must pray together as one group, or not at all.  Furthermore, the prison prohibits its Muslim prisoners from wearing kufis outside of their religious worship.

At its core, this case raises questions about religious accommodation, the extent of deference to prison officials, and the need to distinguish between sincerely held beliefs.  It has the potential to address some of the most fundamental religious protections for prisoners.  For now, the case fights on in federal district court.  It is worth keeping an eye on “Holt II,” even with the Supreme Court’s busy docket and live oral arguments.

See Holt v. Kelley, No. 5:19-cv-00081 (E.D. Ark. filed Mar. 1, 2019).

May 12, 2020 in Current Affairs | Permalink

Saturday, May 9, 2020

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.

May 9, 2020 in Berg, Thomas, Current Affairs | Permalink

Sunday, April 26, 2020

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.

April 26, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

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.)

April 26, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Saturday, April 11, 2020

COVID-19 and Religious Gatherings: “What is at Stake for You?”

In order to limit the spread of COVID-19, how much power should the state have to enforce limits on church gatherings this Easter?  As we watch the showdown unfold in Kansas, Kentucky and Florida, I am also commenting on my students’ reflections on this topic, which was a perfect storm of a problem for our current Georgetown Law seminar on Religion, Morality & Contested Claims for Justice

In our class discussion (over Zoom) last week, my first reaction was one of intense frustration and anger with what are probably the outliers – the religious and political leaders who seem to deliberately ignore the gravity of the crisis, or who seem callous to the health implications for the people of their communities and the broader public. 

But on further reflection, I wonder if there is at least a tiny bit of room for dialogue across difference, in some circumstances.  To what extent is some of the insistence on gathering grounded in the lack of trust that marks our polarized landscape?

At some point in my seminars we do an exercise in pairs entitled, “What is at Stake for You?”  The goal is to create a space where each person can express in their own words, with their own categories, what are their stakes and/or what worries or concerns them most as we enter into conversation about an otherwise polarizing topic.  The pair is then invited to jot down on a single index card a few words that capture their stakes, and to hold those thoughts throughout the conversation with the larger group.  Generally, the exercise helps quite a bit in preparing a terrain for a more open, sincere and productive seminar conversation. 

I still believe strongly that the extraordinary nature of the COVID-19 pandemic presents appropriate circumstances for the strong exercise of state power to limit and/or regulate the size of gatherings of any kind – including religious gatherings.  But I wonder: if each “side” of this debate felt that others were trying to understand their stakes, might that lead, in some circumstances, to more openness to the kind of creative problem-solving that might also ultimately help to “flatten the curve”?

April 11, 2020 in Current Affairs, Uelmen, Amy | Permalink

Sunday, April 5, 2020

Be Part of a “Listening Team”

In a setting that now feels like an eternity ago - when I was emerging from the house to commute to campus - this essay, “Be Part of a Listening Team: A Response to the Coronavirus,” published in the Focolare’s monthly magazine, Living City, reflects on how the example of love and care for neighbors in the wake of the Taal volcano eruption in the Philippines shines a light on a personal response to the Coronavirus crisis.   Even if, for the time being, we are not chatting in the halls with colleagues or holding in-person office hours, I sense that many are nonetheless finding numerous creative ways to continue to be part of a “listening team.”

April 5, 2020 in Current Affairs, Uelmen, Amy | Permalink

Monday, March 23, 2020

Reflections on Liturgy and Community in the midst of the COVID-19 crisis

As citizens concerned about “flattening the curve” of the impact of the Corona virus, especially for our most vulnerable populations, here in my Maryland Focolare community house we are hunkered down indoors, pretty much emerging only for essential groceries and a socially distanced walk in the neighborhood. 

As we stayed home yesterday (Sunday), what to make of the cessation of public liturgies? I realize there has been some discussion in the religious press about whether this is a sign of solidarity or of cowardly capitulation.  Personally, I see it as an unambiguous sign of wise, prudent, loving solidarity. 

Perhaps because of our community’s international reach, the news of the tragic proportion of the crisis, especially in Italy and other countries, often arrives with a very individual human face: the illness or death of someone we know, or of their relatives, of a community leader in a specific city, and yesterday the news that in one Italian town a whole convent of 40 religious sisters is infected.

With this awareness, I have received the national and local public health recommendations with tremendous sense of gravity.  As a Catholic who in normal times is a daily mass goer, this past week I have found great solace by participating in a recording of the daily mass celebrated by Pope Francis.  I have been wonderfully nourished by his essential homilies, petitions that embrace the wide range of suffering on our planet, and the profound invitation to reverent “spiritual communion.” 

When the Holy Father pauses at length before the Blessed Sacrament at the end of the liturgy, I of course realize that there is a tremendous difference between physical presence in church and my interaction with a recording on a screen.

But in these circumstances, I also sense that this enormous gap can be filled with love: the love that emerges from being united with our local Archbishop, who issued the guidelines to not publicly gather; love for those who are most vulnerable to the virus, especially those who are elderly or with fragile health; and of course a very concrete love for our medical workers, with the awareness of how reductions in public gatherings can contribute to keeping them from getting overwhelmed… and so on.

We are One Body, the Body of Christ – and we are experiencing that reality in a way that I never imagined we could. 

So what is mine to do in these circumstances?  First, I feel a very deep invitation to prayer.  Struggling with insomnia as I worry about the people in my life who are vulnerable, I have been pasting tiny post-its with their names on a large picture of “Mary Untier of Knots,” and I feel that with this Our Lady herself is helping me to let her hold those fears in her loving hands.  Second, I try to reach out (via email, zoom or phone) to at least two people per day (beyond those in my community house), to simply check in, listen, and participate in whatever they are going through, to again bring all of those concerns to prayer. 

Finally, leaning on these two walking sticks, I have sensed over the past week that these practices nourish the insight that I need to be thoughtful in my approach to accompanying my students as we proceed with a virtual teaching platform.  I intuit that they may need different things at different times:  some need continuity in the projects that they have undertaken, others need flexibility, and others are in dire need of a listening ear.  And perhaps most fruitful, these practices also help me to admit that I too feel vulnerable, and greatly in need of a sense of connection and community.   Amy Uelmen

March 23, 2020 in Current Affairs, Religion, Uelmen, Amy | Permalink

Thursday, January 2, 2020

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.

January 2, 2020 in Berg, Thomas, Current Affairs | Permalink