Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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

"Freedom to Serve" Book Chapter

I’ve published a chapter in the excellent new book edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and The Prospects for Common Ground (Cambridge University Press 2018). The chapter is titled “Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good.” The chapter can now be downloaded at SSRN; here is the abstract:

Recently, religious organizations seeking protection from government restrictions have emphasized that they seek “freedom to serve” others in their anti-poverty, social-service, healthcare, or educational work. The U.S. Catholic bishops have made that phrase central to their campaign for religious liberty in disputes over organizations’ objections to same-sex marriage, the Obama administration’s contraception mandate, and other rules. This argument, defending religious freedom based on its contribution to social good, is worth examining in detail. Although the “common good” argument raises complications, this Chapter asserts that when properly defined, the argument reflects a legitimate, indeed important strain in America's tradition of religious-freedom rights. In a roughly analogous way, the chapter asserts, constitutional rights to same-sex-marriage found support in considerations of the common good as well as individual autonomy. Recognizing this parallel, and others, between marriage rights and religious-freedom rights might encourage us to give weight to both. The chapter then catalogs the contributions of religion and religious organizations, responds to objections that may be raised, and suggests principles for the proper scope of religious freedom in light of other interests.

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

Sunday, October 21, 2018

Cert Petition Filed in Religious Accommodation Case

A cert petition has been filed in Patterson v. Walgreen Co., a potentially important case under the religious-accommodation provision, section 701(j), of Title VII. And St. Thomas Law's Religious Liberty Appellate Clinic, which I supervise, has filed an amicus brief on behalf of Christian and Muslim organizations supporting the petition.

Patterson, a trainer for workers on Walgreen's phone-assistance line, was fired after he was unable to do an emergency training session on Saturday, his Sabbath (he is Seventh-day Adventist). But his unavailability on that occasion caused no harmful consequences: the training session went forward the following Monday and Walgreen's met the schedule it had articulated for the new phone-call policies. Instead, Walgreen's articulated that it must fire Patterson because this one-off situation would start recurring more regularly in the future, since its other trainer (who had swapped shifts with Patterson in the past) was going to move to a different company because Walgreen's was planning to sell that division in a sale to take place several months down the line. As a result, Patterson was fired at that moment based on a projected set of circumstances beginning nine months later.

The cert petition argues for review on the ground, among others, that the circuits are split on whether the employer may use such speculative future harms to meet its burden of justifying a refusal of accommodation: i.e. showing the accommodation would cause "undue hardship [to its] business." More broadly, while the accommodation provision has sometimes provided protection for employees' religiously-based dress and grooming,  it's been ineffective at protecting varying Sabbath observances because the Supreme Court has interpreted the burden of showing "undue hardship" to require only a showing of a "more than de minimis harm." TWA v. Hardison, 432 U.S. 63 (1977). As the third question presented, the cert petition calls for reconsidering Hardison's interpretation.

Our amicus brief for Christians and Muslims explains how "[a]llowing employers to rely on predicted future events creates at least three problems that undermine the effectiveness of the [accommodation] provision":

First, it allows employers to fire or otherwise adversely affect employees now based on events that might never occur—events that might never necessitate the firing. Second, reliance on future, hypothetical events makes it much more difficult to identify specific accommodations that might be available at the time the conflict arises. Third, reliance on speculative or hypothetical harms relieves the employer of the duty to search for reasonable accommodation—and at the worst, may incentivize employers to dream up scenarios of future hardship.

In addition, we support the petition's argument that the Hardison interpretation of "undue hardship" should be reconsidered, based on several grounds involving the statute's text and purpose:

      The ordinary meaning of “undue hardship” at the time the accommodation provision was enacted (1972) ...  is irreconcilable with a standard of mere “de minimis” cost....

      [T]he premise of the de minimis standard has been undercut by [the] Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ... [which] makes clear [unlike Hardison] that [the accommodation provision] requires protection against the effects of a religion-neutral employer policy....

      A weak interpretation of [the] accommodation provision is particularly harmful to religious minorities, who are particularly likely to come in conflict with formally neutral employer policies reflecting the majority’s norms.

Aaron Bostrom, class of 2020, did an excellent job drafting significant portions of the amicus brief.

October 21, 2018 in Berg, Thomas, Current Affairs | Permalink

Thursday, September 20, 2018

On Masterpiece--and Romer--for Cato SCT Review

I have an essay (available here) in the new Cato Supreme Court Review (the issue reviewing the 2017-18 term), entitled "Masterpiece Cakeshop: A Romer for Religious Objectors?" It explores the idea that Masterpiece was written--for the moment--as a narrow decision, based on official decision-makers' hostility in the particular case rather than on a broad assertion of religious objectors' free exercise or free speech rights, and in that sense is similar to Romer v. Evans (1996), the first gay-rights ruling. Romer struck down Colorado's Amendment 2 on the ground that it reflected animus toward gays and lesbians; the Court thus avoided (and did for almost 20 years) saying anything about heightened scrutiny for gay-rights claims.

From the abstract:

This essay examines Masterpiece and the unresolved religious-liberty questions through the lens of the similarities with Romer (and potentially with the later, more-expansive gay-rights rulings). Part I describes the resemblances between the two rulings, among other things that in both, animus or hostility serves as a “minimalist” holding that avoided committing to broad implications for future cases. But that modesty comes with a cost: To find animus, the Court must denounce the decision-makers in the immediate case as especially unjustified, even malicious, and that conclusion can cause equal or greater anger compared with broader holdings, such as declaring a suspect classification or fundamental right. In the final parallel with Romer, I sketch how the finding of unequal, hostile treatment in Masterpiece might provide the basis for further protection of religious traditionalists’ right to decline to facilitate same-sex marriages, at least in an appropriately limited set of circumstances. [E.g. solidifying Masterpiece's holding that when the state allows social liberals to refuse to provide goods or services with messages that offend against their conscience, it must also allow religious conservatives to refuse in analogous circumstances. And perhaps future rulings adopting more religion-protective readings of Employment Division v. Smith--TB]

       I then turn to general parallels between gay-rights and religious-freedom claims—parallels that call for sympathizing with and protecting both sides. Those parallels depend less on the improper motives or attitudes (animus/hostility) of the regulators, and more on the seriousness of the interests and predicaments of those harmed by government action (same-sex couples denied marriage rights, religious objectors penalized for following their beliefs). Developing sympathy for their respective predicaments, I argue, is more likely to calm our society’s serious problem of negative polarization—while condemning others for animus is more likely to aggravate such polarization. That in turn, I suggest, makes an argument for relying on heightened-scrutiny rationales in these cases, rather than findings of animus or hostility.

September 20, 2018 in Berg, Thomas, Current Affairs | Permalink

Sunday, July 8, 2018

Trump and Religious Freedom: Short-Term and Long-Term

Late last week in a rally, President Trump dissed George HW Bush's "thousand points of light" phrase, which Bush used in the 1988 campaign as an image for volunteerism for the common good in a civil society:

"What the hell was that, by the way, thousand points of light? What did that mean? Does anyone know," said Trump. "I know one thing: Make America Great Again, we understand. Putting America first, we understand. Thousand points of light, I never quite got that one."

Commentators focused on how Trump's riff was mean to HW. But it and other riffs like it are harmful to religious freedom. Granted, Trump's Supreme Court picks are more likely than those of other presidents (e.g. HRC) to take religious freedom seriously across the range of applications; that's a major reason, it seems, why evangelical Christians supported him. (All of the short-listers for the new seat give strong indicia of supporting religious freedom. And I say this even though I strongly believe the Court dropped the ball on the travel ban--because my guess is these nominees will be pretty strong on Muslim freedom outside the immigration context.) 

But however significant the short, even medium, -term benefit to religious freedom from a Court appointment, one must also reckon with the long-term harm to religious freedom that Trump has done by encouraging the undercutting of many of the reasons a society would care about protecting religious freedom. Last week's riff dissed the very concept of serving the common good through a plurality of institutions in a diverse civil society. Trump is beckoning conservative Christians, especially evangelicals--who seem to be quite willing to follow his pied piping--to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others. That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.

This point is an application not only of multiple Mike Gerson columns, but also of Marc and Kevin's fine Times op-ed of last week. The culture will matter in more pervasive, long-lasting ways than the new justice(s). And evangelicals are risking collaborating with Trump in irreversibly degrading their own culture.

July 8, 2018 in Berg, Thomas, Current Affairs | Permalink