Mirror of Justice

The Anniversary of Smith

(Posted one day late)

Employment Division v. Smith was decided 34 years ago today: April 17, 1990. Someone born after Smith still couldn't assume the presidency in January 2025 after winning election this cycle--but it's getting close. And Smith set off a long chain of events: The passage of the Religious Freedom Restoration Act and its state equivalents. The switching of sides by many people on the question of religious exemptions--many conservatives becoming proponents, many progressives becoming opponents--when issues involving the sexual revolution came to dominate public debate over religious freedom. The current Court's reading of Smith in ways that are relatively protective of religious freedom. What a long strange trip it's been.

Religious Freedom, Copyright Royalties, and Court Review of Agency Determinations

The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief supporting the petition for certiorari in a case involving copyright royalties and religious freedom--which also turns out to be important concerning meaningful judicial review of agency determinations that affect First Amendment and religious-freedom rights. The Copyright Royalty Board, the federal agency that sets statutory royalties for digital transmissions of copyrighted sound recordings, has charged noncommercial webcasters (mostly religious in nature) an 18-times higher rate than public-radio-affiliated (also noncommercial) webcasters. That severe disparity raises significant issues under the First Amendment and the Religious Freedom Restoration Act (RFRA). But the D.C. Circuit, in reviewing the Board, treated the case as essentially about mere review of an agency under the Administrative Procedure Act (APA) and gave significant administrative-law deference to the agency's key determination on whether the activities of religious webcasters were comparable to those of NPR webcasters and therefore should not face such a grossly disparate rate.

We argue that courts can't abdicate their responsibilities to protect religious freedom and other First Amendment rights in this way. We use foundational cases. issued over several decades, requiring independent appellate review in First Amendment and other constitutional cases: Bose Corp v. Consumers' Union. (1984), New York Times v. Sullivan (1964), and Crowell v. Benson (1932). And we argue, for example in this summary bit, that

The question in this case is recurring and important. Many claims under RFRA arise from decisions by federal agencies; many claims under the Free Exercise Clause arise from decisions by federal or state agencies. If courts apply administrative-law deference to agencies in deciding RFRA and First Amendment questions, the result will be to eviscerate those protections.

The brief is on behalf of the Christian Legal Society (CLS) and the National Association of Evangelicals. Thanks to the students who worked on the brief--Arianna Wiinamaki and Kris Thompson--and to Steve McFarland and Laura Nammo at CLS.

Book Award for "Religious Liberty in a Polarized Age"

I'm very gratified and humbled to report that my book Religious Liberty in a Polarized Age (Eerdmans Publishing 2023) has won an award in the 2024 Christianity Today Book Awards: the Award of Merit (2d place) in the Politics and Public Life category. The awards reflect, as the CT editors' subtitle puts it, "the books most likely to shape evangelical life, thought, and culture."

I also greatly appreciate the kind endorsement from one of the judges, Katie Frugé, director of the Center for Cultural Engagement for Texas Baptists:

Religious liberty is a fundamental part of the American political order. But in many current conversations, it has taken on a controversial edge, often functioning as a flash point in our culture wars. In this thorough book, Berg argues that religious liberty, rather than being a prescription of uniformity, is both a remedy for divisiveness and an essential safeguard for genuine pluralism and cultural diversity. Religious Liberty in a Polarized Age is a must-read for all who find themselves engaging in the public square, and it gives valuable insight into the current legal and ideological landscape. 

I'm grateful to the Eerdmans editorial team. to John Witte for including it in Emory's Law and Religion series, and to many colleagues including several on MOJ for reading chapters, discussing ideas, and giving encouragement. 

I very much hope that the book will in some way fulfill the editors' statement by helping evangelicals, Catholics, and many others defend strong religious liberty in a way that is persuasive in our divided society.

Re Religion and Political Progressivism, "2023 is Not 1968"

A very interesting read from The Washington Post about the "Justins," the two Tennessee Democratic legislators who have been expelled, returned to office, etc., based on their vocal protests in the legislative chamber. They've been compared to the vocal religious leaders of the civil rights movement.

       Since their GOP colleagues voted them out of office this spring, state Reps. Justin J. Pearson (D-Memphis) and Justin Jones (D-Nashville) have quickly become 20-something icons whose style, faith and values ring some very familiar bells. They wear crisp suits, intone Jesus, see public protests as essential and define “biblical justice” as care for the poor and oppressed. ...

       But 2023 isn’t 1968, including when it comes to the relationship between religion and politics. The Justins are facing a much less religious country, including segments that are cynical and even repelled by candidates who thunder from pulpits about God being on their side. Experts say the Justins’ unusual campaigns, and the strong reaction to them, could both benefit and threaten the progressive movement of which the men are a part.

In our polarized circumstances, the sharp percentage decline in Americans' active religious identification is seen by many as a boon to movements for progressive understandings of social justice. (Religion, that conservative thing, is losing ground.) But that remains a very uncertain matter, as this article indicates, among other things because the decline of active religion has been accompanied by an intensification of the position that religion should be a private pursuit.

Religious Liberty in a Polarized Age (from Eerdmans)

My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher,  at Amazon, and elsewhere  It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:

Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]

       Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.

From a blog summary I did on the book:

[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....

       A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.

Get your copy for vacation reading!

 

Article Posted on the Respect for Marriage Act

Doug Laycock, Carl Esbeck, Robin Wilson, and I have posted "The Respect for Marriage Act: Living Together Despite Our Deepest Differences," on SSRN (forthcoming in the University of Illinois Law Review). First paragraph of the abstract:

The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.

During the RMA's consideration, the four of us provided an analysis to senators arguing that the religious-liberty protections in the Act were substantial and that the Act offered a chance, even a model, for a pluralistic approach that, by protecting both sides, can help put at least some limit on fear and the attendant political-cultural polarization. This Article expands greatly on that analysis.

Scholars' Comment Opposing Rescission of Education Dept.'s Student-Religious-Group Protection

(I'm returning to post on the blog after a significant hiatus caused by a bunch of other commitments!)

       The U.S. Department of Education has proposed to rescind a provision it adopted in the Trump Administration protecting student religious groups at public universities from being denied access to facilities and other benefits available to other student groups. For the notice-and-comment process, I took the lead in drafting a comment letter from a blue-ribbon group of scholars*/ opposing the rescission. The rescission would leave student religious groups protected under another (but more uncertain) regulation that applies to nonreligious groups as well. But we argue that the distinctive protection for religious groups is fully justified by the First Amendment. Summary quote:

The religious-group protection categorically prohibits a public IHE [institution of higher education] from denying a group access because of its sincerely held beliefs or practices, including leadership and membership criteria. But that categorical protection has strong support in First Amendment principles and current Supreme Court case law, for two major reasons. First, unconstitutional discrimination against religion comes in many different forms, and litigation has shown that almost any public IHE policy that denies a student religious group access discriminates in one of these ways. Second, the First Amendment also categorically guarantees religious organizations autonomy to set criteria for leadership and membership, and public IHE policies denying religious groups access regularly violate that guarantee.

 

*/ Doug Laycock, Michael McConnell, Rick Garnett, John Inazu, Michael Paulsen, Asma Uddin, and yours truly. 

"Protecting Free Exercise Under Smith and After Smith" (forthcoming, Cato Sup Ct Rev)

Doug Laycock and I have posted this draft law review article on SSRN (link here), with the title and journal information above. We discuss the specific implications of Fulton v. Philadelphia for current Free Exercise Clause standards under Employment Division v. Smith. But, as the abstract states,  

we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised [in her Fulton concurrence]. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.

Comments welcome.

Amicus Brief on Title IX Exemption

In Maxon v. Fuller Theological Seminary (9th Circuit), two plaintiffs who had been studying for the ministry at Fuller have sued the Seminary under Title IX for dismissing them for entering into same-sex marriages in violation of the institution's student covenant. Fuller has multiple defenses, including the ministerial exception, but one is the Title IX exemption for schools "controlled by a religious organization." The plaintiffs claim that phrase means the school must be controlled by a separate organization in order to qualify for the exemption. The district court said no, holding that the controlling religious organization can be the school's own governing board. That statutory interpretation can stand on its own. But it's also supported by the doctrine of constitutional avoidance, because reading the exception to exclude a seminary or other deeply religious institution merely because it's organizationally independent or nondenominational would create an impermissible denominational preference under decisions like Larson v. Valente--and at the very least would raise "serious, grave" constitutional questions.

That's the argument of the amicus brief that the St. Thomas religious liberty appellate clinic filed on behalf of a host of colleges, K-12 schools, associations of such institutions, and the Christian Legal Society. Becket's pages on the case are here. 

Berg and Laycock on Fulton on SCOTUS Blog

Doug Laycock and I have commentary up about Fulton. The lion's share is some initial thoughts on some of the questions raised in Justice Barrett's concurrence, which obviously lots of people will be aiming to answer.

(FWIW, I've been inactive on the blog because I've been preoccupied with finishing my manuscript, Religious Liberty in a Polarized Age, forthcoming from Eerdmans.)