Friday, October 30, 2020
... In a panel opinion joined by David Souter (ret.), sitting by designation. Maine provides that rural students who can't access a public school can have tuition paid at a private school, but not if it's "sectarian." The CA1 permitted this, despite Trinity Lutheran Church and Espinoza, on the ground that the definition of "sectarian" means that a school (and the parents' choice of it) is disqualified from eligibility not simply because the school is religiously affiliated (religious "status"), but because the funds will be used for activity that includes religious teaching (religious "use").
Tuesday, August 25, 2020
There was nothing surprising about the [Espinoza] decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down.
But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choice and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government’s interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.
Tuesday, August 18, 2020
I've posted two pieces on SSRN discussing religious freedom and its connection with my current interest, political and cultural polarization.
The first is "'Christian Bigots' and 'Muslim Terrorists': Religious Liberty in a Polarized Age," forthcoming as a chapter in a new book from Routledge Publishers. Unfortunately, the publisher locks up chapters and won't allow free posting of drafts. But any reader interested in a draft is welcome to write me at tcberg at stthomas dot edu.
[R]eligious liberty has joined the list of issues that most sharply divide partisans. By now it is well established that America is deeply, increasingly polarized between competing political-cultural outlooks. After briefly summarizing the processes of ideological “sorting,” negative polarization, and political feedback loops that intensify the polarization, this paper identifies the damage when religious liberty becomes a contributing factor in polarization. Religious liberty protection is designed to reduce people’s fear and resentment of others—which in turn fuel polarization—by making room, as much as possible, for people of fundamentally differing commitments to live consistently with those commitments. This key purpose of religious liberty will fail, however, if debate over that protection simply replicates the underlying polarization of views. If anything, current religious-liberty disputes intensify the underlying fights.
Although the religious-liberty circumstances of Muslims and conservative Christians differ, the two share important features—including the fact that others view them with hostility, as “Christian bigots” or “Muslim terrorists.” I identify parallels between the two groups and argue that these parallels support recognizing substantial protection for both.
The second article is "Religious Freedom Amid the Tumult," discussing the recent important Supreme Court decisions on religious liberty, issued amid--and connecting in various ways with--pandemic, polarization, and racial-justice protests. A bit from the abstract:
Among many lessons from today’s crises is that religion, freely chosen and exercised, is a vital aspect of human identity. Religious exercise provides individuals with strength and comfort in the stresses of a pandemic. Religious belief motivates service to others in schools and social-service agencies; credible legal threats to those organizations aggravate our already dangerous polarization. Now as much as ever, it is vital to defend religious freedom for all. Despite some mixed signals, the current Supreme Court seems willing to shoulder that task.
But to defend religious freedom credibly means recognizing rights for others too. Christian conservatives must support religious liberty and equality for Muslims as well. A credible defense of religious freedom also calls for confronting rather than denying the problems of racial inequality. And it calls for drawing careful lines so that LGBT people can participate in economic life and traditionalist religious organizations can follow their religious identity.
Thursday, July 2, 2020
Espinoza v. Montana Department of Revenue is an important win for the principle of choice in religious matters, as well as for choice-based programs in education. Its specific holding is somewhat limited, but its implications are broader. Doug Laycock and I have a piece on SCOTUS Blog analyzing the decision, drawing from our amicus brief in the case (for the Christian Legal Society, the USCCB, the Southern Baptists, the Orthodox Union, the Latter-Day Saints, and others) and from our work over the years. Our piece emphasizes a couple of points, with representative excerpts here:
First, although the decision specifically forbids only exclusions from benefits based on a school's status as religious, its reasoning points toward forbidding exclusions even when they allegedly rest on a school's religious use of the funds. Among other things,
the [status-use] distinction collapses in the context of religious K-12 education. Religious schools typically teach the same secular subjects as other schools — English, history, science, math — while also teaching a religion class or integrating relevant religious perspectives into the secular subjects. The religious elements could be characterized as religious “uses.” But if a state denies otherwise-available funds for classes on secular subjects because the school also offers these religious elements, then it goes beyond not funding religion. It imposes a penalty on the secular educational activity — potentially a large penalty, if all funds are denied — because of the religious teaching accompanying it. It penalizes the school, and those it serves, because of its religious identity, its religious functions, and some of the uses to which its money is put.
Second, we explain that equal access for religious providers to government educational benefits promotes both formally neutral treatment of religion (no religious classifications) and substantively neutral treatment (respecting voluntary choice in religious matters, minimizing incentives for or against it). Then we look to other upcoming cases where those goals may conflict; in such cases, we argue, "neutral incentives and voluntarism should be the fundamental goal." The religion clauses treat religion differently from other activities in order to promote freedom of private individuals and communities in religious matters. This is how we approach the subject of religious exemptions:
Critics have sometimes asked whether it is consistent to require equal provision of funds for religious and secular service providers while also allowing, or even requiring, exemptions for religious conduct in the face of generally applicable laws or regulations. Next term the court will take up the question of whether to overrule its decision in Employment Division v. Smith and once again require exemptions in some cases.
If a law creates a conflict with a sincere religious practice, it prevents people from exercising voluntary religious choice and thus violates 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.
Thursday, June 25, 2020
As many readers know, Title VII's provision requiring employers to make "reasonable accommodation" of their employees' religious practices, when they conflict with the employer's workplace rules, suffered a major blow early on from the Supreme Court's 1977 decision in TWA v. Hardison. There the Court indicated that an employer can show "undue hardship," the statutory phrase that allows denial of accommodation, merely by showing that the accommodation would cause it something more than a "de minimis" burden. Although the statement in Hardison was dicta strictly speaking on the statute's interpretation, lower courts have followed it for more than 40 years. As a matter of ordinary language, "anything more than de minimis" is an indefensible reading of the phrase "undue hardship." And Hardison, as so interpreted, has undermined protection for employees' religious practices, at the very least in cases involving conflicts between work rules and Sabbath observance--the precise conflict that prompted enactment of the accommodation language in 1972. Attempts to correct Hardison by new legislation have failed.
Recently, however, several justices have shown interest in revisiting Hardison. Earlier this year, when the Court denied certiorari in Patterson v. Walgreen Co., Justice Alito, joined by Thomas and Gorsuch, wrote in support of reconsidering the "de minimis" rule in a case cleanly presenting the issue. The Solicitor General had also supported reconsidering the de minimis rule in Patterson itself. Finally, the simple textualist point against Hardison--that "undue hardship" is quite different in meaning from "anything more than de minimis"--has taken on new force because the Court resolved the Title VII issues in the LGBT-rights cases, Bostock etc., on simple textualist grounds.
So the issue is teed up for two new petitions filed in recent days, which present solely the "de minimis" rule uncomplicated by any other interpretive matters. Small v. Memphis Light, Gas & Water involves a Jehovah's Witness elder whose employer's rigid mandatory-overtime rule prevented him from attending both Sunday services and Wednesday meetings. Dalberiste v. GLE Associates involves a Seventh-Day Adventist employee whose offer of employment was rescinded when the company found he could not work throughout the weekends; the petition recounts that the employer gave no consideration to any of several alternatives for staffing.
Among their arguments, both petitions emphasize how minority religious faiths raise accommodation claims far out of the proportion to their share of the population and thus suffer the most from an anemic standard. Both petitions cite a statistical analysis that my St. Thomas Religious Liberty Clinic students and I presented in our amicus brief in Patterson (filed for the Christian Legal Society and other Christian and Muslim groups). From that brief (pp. 23-25):
These disproportionate effects appear, for example, in the cases listed in the appendix to the petition: reported religious accommodation cases decided on summary judgment motions concerning “undue hardship” from 2000 to the present....
Muslims, a classic religious minority, constitute 18.6 percent of this large set of accommodation decisions (19 of 102), even though, according to a comprehensive 2014 study, they constitute only 0.9 percent of the population. [Citing Pew Research Center, America’s Changing Religious Landscape (2015).] Overall, claims by members of non-Christian faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians, Sikhs, and African religions) make up 34.3 percent of the accommodation cases (35 of 102), even though non-Christian faiths made up only 5.9 percent of the population in 2014 (and significantly less than that in earlier years). The percentage of cases in the appendix involving religious minorities climbs to 62 percent when one combines the various non-Christians (34.3 percent of the cases) with sects that follow the minority practice of Saturday Sabbath observance: Seventh-day Adventists (22 of 102, or 21.6 percent of 25 the cases) and other small Saturday-observing sects (6 of 102, or 5.9 percent of the cases).
Steffen Johnson and Michael McConnell at Wilson Sonsini and Jim Sonne at the Stanford Religious Liberty Clinic represent Mr. Small; Gene Schaerr and Schaerr Jaffe, Mark Rienzi and the Becket Fund, and Todd McFarland of the Seventh-Day Adventists represent Mr. Dalberiste.
Friday, June 19, 2020
Angela Carmella (Seton Hall Law School), known to many here at MOJ, has posted the above-titled article on SSRN (forthcoming in the Kansas Law Review). Angela is always thoughtful, and I appreciate her subject matter here for its challenge to the assumption that religious-exemption claims are a thing for conservatives to assert and progressives to oppose. Part of the abstract:
This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives.
The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.
Wednesday, May 20, 2020
That's the title of a short piece I did some weeks back for the Berkley Center at Georgetown (and somehow forgot to hawk here on MOJ at the time). It talks about polarization during the Reformation and then today:
[V]igorous protection of religious liberty is intended to calm fears and reduce polarization, by giving people of fundamentally different deep beliefs ample space not just to hold their beliefs but also to live consistently with them....
Fear of the other side likewise drives today’s polarization. How, it’s asked, could 81% of white evangelicals vote in 2016 for a man with glaring character defects? A Wheaton College survey of those Trump voters found that religious liberty worries ranked third or fourth most frequent as the chief reason for their vote—higher than abortion and LGBTQ issues. The solicitor general’s statement [in Obergefell, refusing to rule out conservative institutions being stripped of tax exemptions] and the  California college bill [which would have stripped modest-income students at conservative religious colleges of their state grants] received extensive evangelical attention.
Religious liberty can calm such existential fears and reduce polarization. But it will instead aggravate polarization if it simply replicates struggles over underlying issues. Religious liberty must be strong enough to protect unpopular views, and it must recover some bipartisan status.
1. The Murphy Institute at St. Thomas has posted video from Asma Uddin's excellent presentation, "When Islam is Not a Religion: Inside America's Fight for Religious Freedom." I was glad to moderate the session, which concerns respecting religious liberty for Muslim Americans and for everyone and is based on Asma's book of the same title. A variety of good questions from a large online audience (going online creates real possibilities for increasing outreach for organizations that are outside the Beltway hothouse). My own recent thoughts on religious freedom for Muslims, evangelical Christians, and everyone are here.
2. The Berkley Center at Georgetown sponsored a video discussion of the issues concerning COVID-19 and religious worship and other gatherings, with Marty Lederman, Asma Uddin, Robin Fretwell Wilson, and me. Thank you to Michael Kessler for arranging and leading the discussion, to the Berkley Center for sponsoring it, and to my friends and co-panelists for a lively, productive discussion.
- the closings were "a certain infringement in spirit and effect of the free exercise of religious liberty";
- "[b]ecause the purposes of church assemblages are such as to entitle them to be the very last to be absolutely forbidden by the civil authorities"; and
- "In the influence of the churches upon the minds and souls of men, in quieting through strengthened faith in God the panic and fear in which epidemic thrives, the churches are potential anti-influenza workers, fit to co-operate helpfully with our doctors and our nurses."
The arguments have a more Protestant-Establishment vibe to them, as you might expect, but they overlap in concrete ways with arguments being made today.
Sunday, April 26, 2020
I have a post, up at the Religious Freedom Institute's Cornerstone Forum, entitled "Institutional Religious Freedom Includes Freedom in Serving Others." It's about issues that are still relevant notwithstanding the recent focus on the legitimate public-health limits to religious freedom. A bit from the beginning:
Today’s most vexing problems about freedom of religious institutions in the United States concern religious nonprofits that provide social or educational services to others. Such problems, like many others, are currently superseded by the overwhelming health and economic effects of COVID-19. But the issues will return. And the services religious nonprofits provide will be important in responding to and recovering from the pandemic.
Nonprofits pose complex religious freedom questions because they often straddle the perceived boundary between public and private. Decisions by houses of worship and decisions about clergy get very strong protection because they are regarded as private, involving ministry to the faithful, not the general public. Conversely, some religious organizations serve the public with no conflicts between their own norms and those required by law.
Some organizations, however, employ or serve people outside their faith but also encounter religious freedom issues because their tenets clash with general laws on immigration, nondiscrimination, or other matters. Consider progressive groups that provide sanctuary or aid to undocumented immigrants, or Catholic adoption or foster agencies that decline to certify same-sex households for child placement, or religious colleges that assign student rooms by biological sex at birth. I call such organizations “partly acculturated”—they provide services of secular value to the broader culture, but some of their religious norms clash with dominant cultural values reflected in law.
I’ve argued previously that partly acculturated activities deserve significant protection. Religious freedom includes freedom in serving others. The law should not force organizations to be either wholly unacculturated—serving only their own members—or wholly acculturated—subject to all regulations no matter how serious the clash with their beliefs.
The piece includes brief, entirely non-comprehensive evaluations of three proposed pieces of legislation addressing the conflict between nondiscrimination rights of LGBT persons religious freedom rights of institutions serving others: the Equality Act, the First Amendment Defense Act, the Fairness for All Act.
On the quick mention above of how religious institutions are vital in helping people weather the pandemic--physically, emotionally, and spiritually--Byron Johnson and Thomas Kidd have a good article in the Dallas Morning News, also summarized by RFI here. They make an important reminder in the face of all the attention to a very small number of congregations that have behaved irresponsibly.