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.

Friday, October 18, 2019

Book Chapter "Life Patents, Religion, and Justice: A Summary of Themes"

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."

October 18, 2019 in Berg, Thomas, Books, Current Affairs, Religion | Permalink

Thursday, October 17, 2019

"Patents on Life" Book (Religious, Legal, and Other Views) Coming Soon

Coming in the next few days and weeks from Cambridge University Press: 

Patents on Life_Cover

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).

Continue reading

October 17, 2019 in Berg, Thomas, Books, Current Affairs, Religion | Permalink

Monday, September 30, 2019

Amicus Brief: The Definition of "Minister" and the Original Understanding of the 1st Amendment

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.

September 30, 2019 in Berg, Thomas, Current Affairs | Permalink

Wednesday, September 25, 2019

Espinoza Amicus Brief: Government Benefits and Other Religion Clause Cases

Espinoza v. Montana Dept. of Revenue is the next Supreme Court religion case on the merits, and it is receiving good analysis, including from Rick and from Marc and Mark

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.

September 25, 2019 in Berg, Thomas, Current Affairs | Permalink

Monday, September 9, 2019

Why Conservative Christians Have a Stake in Protecting Muslim Religious Freedom

I have a piece on this subject up at Christianity Today. One bit:

Both groups, in different places and settings, are unpopular and face hostile, overly burdensome regulation. Opponents label them “Muslim terrorists” and “Christian bigots.” I don’t claim the situations are identical; Muslims are a small minority almost everywhere, while conservative Christians often have political and cultural power. But conservative religious beliefs about sex and other issues are highly unpopular in some places: in secular universities, in states and cities that are deep blue politically. Conservative Christians in those settings face restrictions, and it hurts their cause when Christians in power elsewhere restrict Muslims.

The piece at places, if there were room, could have cited our own Robbie George as well as Russell Moore, Luke Goodrich, and others who have made the case that religious freedom stands and falls together for all. "Everything that needs to be said has already been said. But, since no one was listening, everything must be said again.” (Andre Gide)

The piece is up simultaneously with a CT interview of Asma Uddin, former Becket Fund lawyer, on her excellent book When Islam is Not a Religion.

 

September 9, 2019 in Berg, Thomas, Current Affairs | Permalink

Sunday, September 8, 2019

"Religious Freedom and the Common Good: A Summary of Arguments and Themes"

That's the title of my introductory/overview essay, posted on SSRN, summarizing the papers from our Law Journal symposium at St. Thomas on the subject. The full set of papers is here. A couple of paragraphs from the abstract of my overview: 

       We tend to think that the common good is simply a limit on freedom: that individual and societal claims inevitably clash, that the common good stands for society’s interests in restricting the actions of individuals and private groups. But freedoms also serve social purposes. Indeed, such arguments may be increasingly important to defending the right of religious freedom in an era of skepticism toward many religious claims. Perhaps for this reason, advocates and scholars have made a discernible turn toward exploring the common good as one key rationale for religious freedom.

       But this justification of religious freedom also raises a number of important challenges and questions. They can generally be grouped into three areas: (A) What precisely is the evidence, and how strong is it, for the connection between religion and benefits to individuals and society? (B) What do religion’s social contributions have to do with religious freedom? (C) How does the common good suggest limits on the scope of religious freedom, or criticisms of religious freedom as it is practiced or claimed today?

The symposium brings together contributors from sociology, political science and history, law, and public-policy disciplinary perspectives. The roster includes Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance; Angela Carmella, who writes on CST and the scope of religious freedom; Roger Finke and Dane Mataic, social scientist who do empirical work on religious restrictions around the world; Brian Grim, who gives a shortened version of his important study on the economic value of U.S. religion; Mark Hall, leading scholar on the founders' views of religion in public life, including their views on religious accommodations; Byron Johnson of Baylor's Institute for Religious Studies, among our leading sociologists on the empirical contributions of religious social-service activities; Jacqueline Rivers, sociologist and scholar of the African-American church; and Melissa Rogers, now at Brookings and formerly advisor on faith-based and community work, including religious-freedom issues, in the Obama White House.

While I'm at it, I should also commend Kathleen's Brady excellent article on the same topic, here.

September 8, 2019 in Berg, Thomas, Current Affairs | Permalink

Tuesday, August 13, 2019

Cert Petition Urging Overruling of Smith

The Becket Fund has filed a certiorari petition in a case called Ricks v. Idaho Board of Contractors. Ricks, who applied for an Idaho license to be able to practice his livelihood as a construction contractor, objected to the requirement of providing his social security number (he believes, as a small but non-negligible number of people have regularly believed, that it’s the “mark of the beast” in Revelation 13:16-18). The petition urges the Court to overrule Employment Division v. Smith and subject even “neutral and generally applicable laws” to meaningful scrutiny under the Free Exercise Clause.

Ten religious liberty scholars, including yours truly, have signed an amicus brief supporting the petition. Tom Hungar and others at Gibson Dunn drafted and filed the brief on our behalf. From the summary of argument:

Smith is ripe for reconsideration, and this case presents an excellent opportunity for the Court to engage in that endeavor. Smith itself was a departure from this Court’s previously settled requirement that the government demonstrate a compelling interest before imposing a substantial burden on the free exercise of religion. The question of the proper interpretation of the Free Exercise Clause was not briefed in Smith, but it has been substantially elucidated by subsequent academic work. That scholarship reveals that the Framers understood the Clause not merely as embodying an equal protection principle that prohibits targeting or discriminating against religion, but also as a substantive protection granted to religious practices even in some circumstances where similar secular conduct can be prohibited. The Smith Court’s undue contraction of the protections afforded by the Free Exercise Clause inevitably falls hardest on adherents of minority religions—the very individuals that the Clause was adopted to protect.

August 13, 2019 in Berg, Thomas, Current Affairs, Religion | Permalink

Monday, June 24, 2019

"The Perception Gap"

As reported by Yascha Mounck of Johns Hopkins in The Atlantic,  a group called More in Common has released a study called "The Perception Gap," showing the divergence between what people of one political party think the other party's members believe, and what they actually do believe. For example,

      Democrats ... estimated that four in 10 Republicans believe that “many Muslims are good Americans,” and that only half recognize that “racism still exists in America.” In reality, those figures were two-thirds and four in five.

      Unsurprisingly, Republicans are also prone to caricature Democrats. For example, Republicans approximated that only about half of Democrats are “proud to be American” despite the country’s problems. Actually, more than four in five Democrats said they are. Similarly, Republicans guessed that fewer than four in 10 Democrats reject the idea of open borders. Actually, seven in 10 said they do.

And education doesn't help--the study "found that the best educated and most politically interested Americans are more likely to vilify their political adversaries than their less educated, less tuned-in peers":

      Americans who rarely or never follow the news are surprisingly good at estimating the views of people with whom they disagree. On average, they misjudge the preferences of political adversaries by less than 10 percent. Those who follow the news most of the time, by contrast, are terrible at understanding their adversaries. On average, they believe that the share of their political adversaries who endorse extreme views is about 30 percent higher than it is in reality.

Finally, the intensifying effect of higher education is skewed--it makes Democrats caricature their opponents more than it makes Republicans do so:

      Perhaps because institutions of higher learning tend to be dominated by liberals, Republicans who have gone to college are not more likely to caricature their ideological adversaries than those who dropped out of high school. But among Democrats, education seems to make the problem much worse. Democrats who have a high-school degree suffer from a greater perception gap than those who don’t. Democrats who went to college harbor greater misunderstandings than those who didn’t. And those with a postgrad degree have a way more skewed view of Republicans than anybody else.

I can't vouch for the study's methodology. But the results are worth looking at: they are striking, even if not especially surprising.

June 24, 2019 in Berg, Thomas, Current Affairs | Permalink

Saturday, June 22, 2019

"Religious Freedom and the Common Good" Symposium Papers

I've been away from blogging recently, for a variety of reasons: a heavy teaching semester, including an enjoyable two weeks teaching Hungarian and other law students in Budapest; a book manuscript in the editing and proofing stages; and acting in another Gilbert & Sullivan production (a thing I do).

The papers from the St. Thomas Law symposium on "Religious Freedom and the Common Good" are now published and online (here). They include contributions by sociologists of religion, political scientists, legal scholars, folks with government experience on religious-freedom matters, etc. 

We think the collection of papers will be important to future discussions about the common good both as one important justification for religious freedom and as a framework for its proper scope and boundaries. As challenges to religious freedom mount (around the world and here), it will be increasingly important (as I've previously argued here and here) to how religious freedom is not just a selfish assertion but a key contributor to a healthy, thriving community.

June 22, 2019 in Berg, Thomas, Current Affairs | Permalink

Thursday, March 21, 2019

"Religious Freedom and Nondiscrimination" Article

I’ve published a new article, Religious Freedom and Nondiscrimination, based on an address at Loyola University-Chicago’s symposium on “The Question of Religious Freedom: From John Courtney Murray and Vatican II to the Present.” The symposium papers (vol. 50, issue 1) are from an excellent list of people, including MOJ-friend Kathleen Brady, the leading theological ethicist Robin Lovin, Loyola’s Miguel Diaz (who chaired the event), Leslie Griffin, and others.

My piece can be downloaded at SSRN; here is the abstract:

      This essay explores two theses about the relationship between religious freedom and nondiscrimination. First, nondiscrimination is a crucial component of religious freedom: such freedom must be equal for all religious positions. Religious freedom for some faiths more than others is not truly religious freedom: rather, it is a policy for advancing the favored faiths or their sociopolitical goals. We see this tendency operating today, for example, in that some conservatives speak strongly of religious freedom but oppose equal freedom for Muslims. The essay discusses (examining the Trump travel ban and other disputes) why that attitude is wrong in principle and misguided, as a matter of prudence, for social conservatives' own religious-freedom claims. The essay also discusses the prevalence of hostility toward conservative Christians.

       Second, religious freedom is a value independent of nondiscrimination. Equality for various faiths is little comfort without a baseline guarantee of actual freedom, including room to exercise religion aspects of life beyond worship: charitable work and daily life. Moreover, sometimes the values of religious freedom and nondiscrimination come in conflict: when they do, we must give weight to both of these important values, and in particular, not simply subordinate the value of religious freedom to the value of nondiscrimination. The essay gives reasons for protecting religious freedom as well as nondiscrimination, outlining parallels between the constitutional claims of LGBT persons and those of religious objectors to same-sex relationships. Finally, the essay suggests means for giving substantial protection to both rights.

March 21, 2019 in Berg, Thomas, Current Affairs | Permalink