Sunday, April 5, 2020
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.”
Monday, March 23, 2020
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
Thursday, January 2, 2020
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).
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.
Friday, December 6, 2019
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
Robert E. Scott Distinguished Professor of Law
University of Virginia
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
Thursday, November 21, 2019
During my semester of serving as a certified legal intern for the public defender's office in juvenile court, representing children who have been accused of committing acts that would be crimes if committed by an adult, I have experienced and learned a lot. And as a product of seemingly unrelated reading, including Catholic bioethics and American Constitutional law, I would like to discuss the issue of "fathers," starting with this question:
Can a "morally neutral" culture create anything good?
Sure, but only by chance, or consensus, or when seasonal conditions allow since there is, by design, no authoritative agreement on what's good and what's not. Failures in fatherhood are a social problem in our culture, truly a moral problem and enigma; a problem that is bigger than anything I could hope to solve, or even understand, as a law-student intern working with kids who need adequate care in addition to some moral correction. The problem is this: in the lives of juveniles who are judged by the state to be "delinquent," what is the role of "a father" and who can make a man into a good father?
Wednesday, November 13, 2019
The president of the major association of of evangelical Protestant higher-education institutions, the Council of Christian Colleges and Universities (CCCU), has issued a statement in conjunction with the Supreme Court arguments on the DACA-recission case. The CCCU has supported protection for "Dreamers" for a long time, and in the current case it joined an amicus brief supporting DACA's legality. I blog this not for the purpose of discussing the legal issues in the case or endorsing the challenge to the recission.
I only want to call attention to the participation of "Dreamers" in CCCU institutions as one of the countless instances in which faith-based institutions with "traditional" views are contributing to the common good--and in particular, are living and working with, and helping to empower, communities that are vulnerable in some way. Indeed, in significant parts of the country evangelical (and Catholic) higher-education institutions have high percentages of student of color. In our politically polarized times, such work is too often ignored. This is an opportunity to pay attention to it.
From the statement by president Shirley Hoogstra:
This is very close to home for one of our campuses as Norma Ramírez is a PhD candidate in clinical psychology at Fuller Theological Seminary [a CCCU member] and one of the plaintiffs in the case. You can read more of her story here. You can also watch this video to hear from her directly.
The CCCU has supported a permanent solution for Dreamers since the DREAM Act was first introduced in 2001. As part of our ongoing court strategy, we recently signed on to two amicus briefs addressing the Supreme Court cases on DACA. These briefs target crucial ideas to our immigration policy perspective; they argue for the protection of DACA recipients as they contribute to society and to our institutions and in the promotion of defense of human dignity.
The CCCU continues to support a bipartisan, legal, permanent legislative solution for DACA recipients, and feels the urgency of this issue for our students, their families, their employers, their churches, and their communities. What’s at stake? These young people have become integral parts of their communities, and removing them from the U.S. would impose a huge financial, as well as emotional, burden on the country. Beyond the economic arguments, though, we also feel a moral imperative. The CCCU believes that all persons are made by our Creator God, are made in His image, and therefore are endowed with dignity (Genesis 1:27). These young people—and those around them—need stability in order to thrive. Mass deportation would unconscionably break up families.
Friday, October 18, 2019
Yesterday I blogged about our shortly-forthcoming edited book of essays, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. I've now posted on SSRN my chapter, which concludes the book with a summary of the essays and the themes. Here's a bit from the abstract:
This book gathers religious, secular moral, legal, and sociopolitical perspectives in one place. It aims to be a resource so lawyers, policy activists, and policymakers in patent debates might better understand what religious perspectives have to offer, and so religious thinkers and leaders might better understand biotech patents and thus have more to offer. The chapters include Christian, Jewish, and Muslim perspectives on bioethics and law--and both American and European perspectives on the limits of patentable material. The chapters explore various considerations: the importance of patents to innovation, the limitations on patenting of naturally occurring products and processes, the potential limits on patents stemming from distributive concerns, and the place of patents in international trade and development debates.
Three themes, summarized here, emerge from the balance of the chapters. First, patents on life call for evaluation under criteria of morality and social justice. Second, religious thought can contribute to (without dominating) such evaluations. Finally, however, for religious thought to contribute effectively, it must be more informed and sophisticated than it has been, about both patent law and biotechnology. The chapters aim to provide such knowledge.
This final chapter gives a good sense, I think, of what the rest of the book covers.
I hope readers interested in the "Catholic legal theory" project will give the volume a look--and suggest it to your academic libraries! First, take a look at it yourself. Second, pass the word to others who work, or have interests, in any of the areas of public moral theology, human life and dignity, technology, social justice, and development and human rights ("preferential option for the poor" etc). A few reasons why this topic may be of wide interest:
1) The vast majority of the chapters in the book are very accessible to non-scientists. It's meant to explain basic patent concepts, and genetic technologies, to religious thinkers (and explain religious ethics to patent lawyers and scientists). Patent law can get complicated, but at its base it has a quite comprehensible logic.
2) As I've argued in a previous paper on "intellectual property (IP) and the preferential option for the poor," IP laws, including patent, are by nature a kind of qualified (tho still valuable) property right that has parallels to Catholic approaches to property. IP is designed with social and common-good purposes in mind: encouraging innovation through exclusivity, while maintaining others' access through limits on exclusivity. Catholic thought on property tends to have a similar structure.
3) Partly because IP rights fit with the Catholic model of qualified and instrumental property rights, and partly because patents have affected poor people in developing nations, the Catholic Church has actually had quite a lot to say about them--albeit not in a systematic way. The Vatican has defended the right of indigenous people to control over and fair reward for the genetic resources, the claim of people in poverty to have access to essential medicines (including, for purposes of this book, "biologic" drugs produced from living organisms), and the claim of farmers to retain autonomy over genetically modified seeds in the face of licensing practices by companies holding patents on the seeds. This collection aims, among other things, (a) to make the Church's positions better known to policymakers in the field and (b) help Catholic thinkers integrate the important topic of IP into their understanding of Catholic social thought principles.
4) Because of the richness of Catholic social doctrines in this area, and because of the role of Catholic institutes in the project, we have several different Catholic contributors. Some focus very much on the development-and-poverty implications of patents on and access to biotechnologies. Others focus on the bioethical issues involved in giving humans ownership over materials or processes that are relatively close to "natural [God-created] phenomena." In any event, while the chapters contain considerable religious diversity in the chapters, they also contain a set of Catholic : essays that are rich, deep, and diverse. IP is now central to the economy and society, and not just in the biotech area. These essays will help people think through how Catholic thought applies to the "new form of ownership" that Saint John Paul II identified in Centesimus Annus (para. 32) as increasingly fundamental: "know-how, technology, and skill."
Thursday, October 17, 2019
Coming in the next few days and weeks from Cambridge University Press:
The book contains 16 interdisciplinary essays (law, theology, ethics, politics, business) on biotechnology patents and issues of justice. A bit from the description at Amazon (see also the Cambridge Press page here):
This volume brings together a unique collection of legal, religious, ethical, and political perspectives to bear on debates concerning biotechnology patents, or 'patents on life'. ... Even after many years and court decisions, important contested issues remain concerning ownership of and rewards from biotechnology -- from human genetic material to genetically engineered plants – and regarding the scope of moral or social-justice limitations on patents or licensing practices. This book explores a range of related issues, including questions concerning morality and patentability, biotechnology and human dignity, and what constitute fair rewards from genetic resources.
The issues the book addresses appear regularly in the news: gene-sequence patents and their effect on biomedical innovation and costs, "biopiracy" of developing-nation resources and its effect on indigenous peoples, genetically modified crops and their effect on farmers and farming practices, biologic-drug patents, gene-editing (CRISPR) technology patents.
This book responds to the fact that such issues concerning biotechnology ownership, patents, etc., have received considerable secular ethical (as well as political and economic) analysis--but relatively little theological/ethical analysis by religious traditions, leaders, and thinkers. There is plenty of religious bioethics, including on new genetic technologies, but relatively little of it addresses ownership, patents, and so forth. The Vatican has actually been a fairly active voice (emphasizing a moderate view of patent rights, their role in innovation, but also the need to temper them to ensure access for the poor and fair rewards to indigenous peoples)--but the Church's role is not as well known as it should be.
The premise of this book is that the great religious traditions and their leaders and thinkers can speak to those issues but haven’t addressed or studied them much. They need to understand the basics of patent law and policy better. Conversely, the many lawyers, policymakers, and activists engaged in moral debates over biotech patents and the creation and distribution of technologies haven't appreciated the contributions that religious thought can make. They need to understand religious social thought better.
This book, with its multidisciplinary contents, is a one-stop, readable resource for all of the groups above.
Please tell your libraries to buy the book! And--just in time for holiday gift-giving--you can pre-order it at Amazon in Kindle (delivery Oct. 24) or hardcover (available December) versions.
The book also reflects both US and European approaches to the patentability of genetic material and the role of moral considerations in granting patents, both topics that involve interesting trans-Atlantic contrasts and comparisons. And it also reflects multiple religious approaches: Catholic, Jewish, Muslim, and Protestant (both evangelical and mainline).
Monday, September 30, 2019
Three cert petitions have been filed in the Supreme Court recently on the issue whether teachers with religious teaching functions in religiously grounded schools are "ministers" for purposes of the First Amendment's "ministerial exception," affirmed unanimously in the Hosanna-Tabor decision. Two are from the Ninth Circuit (Our Lady of Guadalupe School v. Morrissey-Berru, St. James Parish School v. Biel); one is from the California appellate courts (Stephen Wise Temple v. Su). In all three cases, the lower courts held that the teachers' religious functions were outweighed by the fact that they lacked a minister-like "credential, training," or title and/or were not "held out" as ministers by themselves or the school.
In the first-filed of these cert cases, Our Lady, the Ninth Circuit found the teacher to be a non-minister even though it admitted that she had "significant religious responsibilities": she “committed to incorporate Catholic values and teachings into her curriculum,” including a religion/Catholicism class she taught, and also “led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year.” The court objected to her lack of "credential, training, or ministerial background." The petitions in Our Lady and the other cases argue--to simplify a bit--that one who performs significant religious functions (leadership, teaching, liturgy/worship, etc.) in a religious organization should be considered a "minister" and should not be excluded because of "credentials" like title or training.
With the students in my religious liberty clinic and with the Christian Legal Society, I've filed an amicus brief arguing that a focus on "minister-like" title, training, or credential will discriminate against unfamiliar religions and will invite courts to second-guess an organization's understanding of how people qualify to be its leaders.
We've also presented what I think is a valuable originalist argument: that "narrow definitions of 'Minister,' especially through requirements of ministerial education or credentials, were a chief evil that helped spur adoption of the First Amendment," and that the founding generation would have regarded as violations of free exercise and incidents of establishment. Here's a bit:
The Constitution’s religious freedom guarantees arose in significant part from disputes between established colonial churches and Pietist dissenters, including “New Light” Congregationalists in Connecticut and Baptists in Massachusetts and Virginia....
The New Lights opposed the formally trained “legal preacher,” preferring a “layman who had experienced conversion” personally.... They believed that “the learned ['Old Light' establishment] clergy had lost touch with the spiritual needs of the common man and no longer really served as ministers of God to them.”
New England colonial legislatures, which reflected the views of the “Old Lights,” responded by taking steps to restrict or disfavor informally trained ministers. [McLoughlin, 1 New England Disssent] at 363. In 1742, Connecticut passed a law prohibiting “itinerants” from preaching without approval of an established parish. That same year, it also passed legislation “preventing any church or parish from choosing a minister who lacked a college degree.”
Likewise, Massachusetts passed a law in 1760 preventing legal recognition of parish ministers unless they had “academy or college training, or had obtained testimonials from the majority of the ministers already settled in the county.” Jacob C. Meyer, Church and State in Massachusetts 51 (1930). The law disqualified uncredentialed ministers, primarily Baptists, from receiving funds that were collected by each town’s authorities for support of worship.
... Like the[se] founding-era laws, the Ninth Circuit requires that a minister must have some sort of “credential, training, or ministerial background” [in this case, to fall within the ministerial exception]/
St. Thomas students Erik Money contributed excellent research and drafting to the brief.
Wednesday, September 25, 2019
With Doug Laycock and counsel at the Christian Legal Society (Kim Colby, Reed Smith), I've co-drafted this amicus brief for 17 religious and educational groups, including the Catholic bishops, the Orthodox (Jewish) Union, the LDS Church, the Seventh-Day Adventists, the Southern Baptists, the National Association of Evangelicals, the Missouri-Synod Lutherans, World Vision, and several others. The brief covers several issues.
First, it explains why the Montana Supreme Court violated the Free Exercise Clause by using a discriminatory state constitutional provision, one that singles out religious schools for exclusion, to strike down a neutral school-choice program under which scholarships encouraged by tax credits support religious-school students only because their families choose to use religious schools.
We also explain how cases like this one, involving programs of benefits that include religious schools equally with other schools, relate to other categories of cases under the Religion Clauses. Those others include the issue, now returning to the Court in a couple of certiorari petitions, whether the Free Exercise Clause requires more than just equal protection for religion from government regulation but requires special protection, in the sense that even a generally applicable law must have a strong justification for imposing significant burdens on free exercise. Our key point is that the right to equal inclusion of religious schools in benefit programs ultimately rests on the principle not that religion should be treated the same as everything else, but that the government should respect and protect private choice in religious matters (what Doug has long called "substantive neutrality," Michael McConnell has called "incentive neutrality," and I have called "voluntarism"; we use all the terms in the brief). A key passage:
Applying a general law to a religiously motivated practice may be formally neutral, if the law treats religious and secular violations alike. But if the law significantly burdens religious practice, it prevents people from exercising voluntary religious choice and thus lacks 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. Nonbelievers will not suddenly start observing the Sabbath, or traveling by horse-and-buggy, or holding their children out of high school just because observant Jews or Adventists or Amish are permitted to do so.
Formal and substantive neutrality both suggest equal treatment of religious and secular schools with respect to financial aid, because money has the same value for everyone. But most exemptions of religious practices have value only for believers in some particular faith. So even though an exemption is a form of religious category, religious exemptions create neutral religious incentives.