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.

Thursday, July 2, 2020

Espinoza and What Comes Next

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.

July 2, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Thursday, June 25, 2020

New Cert Petitions in Title VII Religious-Accommodation Cases

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.

June 25, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Friday, June 19, 2020

Carmella on "Progressive Religion and Free Exercise Exemptions"

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.

June 19, 2020 in Berg, Thomas, Religion | Permalink

Wednesday, May 20, 2020

"Religious Freedom and Polarization: A Cause--and a Cure?"

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 [2016] 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.

May 20, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Two Video Programs on Religious Liberty

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.

May 20, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Church Closings During the Spanish Flu

Religion scholar David Bains, a former colleague of mine, has linked on his excellent blog ("Chasing Churches") to this article about the public-health orders closing DC churches during October 1918, the deadliest spell of the 1918-19 pandemic. 
 
When churches were ordered closed, after several other categories of entities had been closed, the association of mainline Protestant clergy adopted a resolution "cheerfully complying with the request of the Commissioners." The tone of that resolution, I suspect, reflects that that particular group of churches in that era was less suspicious of civil government, because more comfortable with their own place in the culture, than a number of Protestant churches are today (although today too, the vast majority of houses of worship have not only compiled with but have refrained from criticizing closing orders).
 
Churches did, however, move to outdoor services, although there was some controversy about that. And once the deaths began to decline, and the authorities began allowing other entities to open, clergy began to protest that they should be too, for various reasons: 
  • 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.

 

May 20, 2020 in Berg, Thomas, Religion | Permalink

Sunday, April 26, 2020

Institutional Religious Freedom in Serving Others

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.

April 26, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Mississippi Case on Worship Services, In-Person versus Drive-In

A federal district judge in Mississippi who's handled a couple of cases about restrictions on religious gatherings writes an opinion setting forth a generally sensible distinction between in-person services (still too risky at this point) and drive-in services with the window cracked in the car enough to hear the sermon/homily or other proceedings (some risk but outweighed by the importance of free exercise of religion). As "re-opening" proceeds and more and more establishments open, it will probably become more complicated to justify prohibitions on small in-person religious gatherings practicing social distancing, but the nature of religious gatherings, and the difficulty of fully enforcing social distancing in them, may provide a justification for a while.

In noting that drive-in services, while protected, are still not "risk-free," the district judge writes:

While it may be imagined that many attendees of such services would be family members who have already been exposed to each other, that will not always be the case. Indeed, it seems quite likely that, as with regular church services, many such attendees will be elderly parishioners who require the assistance of friends or non-resident family members to take them to the service. It is well known that the Covid-19 virus disproportionately kills elderly individuals, and it may therefore be assumed that, if the holding of such “drive-in” services becomes a nationwide trend, that a significant (and possibly large) number of deaths will result. This court believes that preachers and parishioners would be well advised to take this into consideration when deciding whether or not to hold or attend such services.

The judge does not make clear whether, in saying that these risks exist but aren't sufficient to justify legal bans on drive-in services, he is saying (a) there won't be enough such cases of transmission to elderly persons (and eventually deaths) to warrant entirely shutting down drive-in services for everyone, or (b) those cases would result from the person's own voluntary choice to attend the service (and paternalistically overriding her religious choice as to her own health is not a sufficient interest), or (c) some combination of the two. (Obviously, if an elderly resident traveled from and back to a nursing, long-term care, or assisted-living community, there could be more than just her health at stake: some nursing homes have prohibited elderly residents from returning once they leave the facility for any reason unless they're quarantined first.)

April 26, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Monday, March 23, 2020

Reflections on Liturgy and Community in the midst of the COVID-19 crisis

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

March 23, 2020 in Current Affairs, Religion, Uelmen, Amy | Permalink

Thursday, November 21, 2019

Fatherhood needs support from Church and Society, State can't go it alone

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?  

Most of the clients I've represented do not have a father who is present in their lives.  But every single human being does indeed have a male origin, in addition to their mother.  No person alive today exists but for the union of one male and one female, cooperating with the gift of life which God has given to humankind.  Perhaps more "provable" than the origins of the first man and first woman is the present-day fact that "male and female [God] create[s] them"—that is, all babies, all children, each one of us—that was us, created by a male and a female, not by ourselves.  Most of these young people have a mother who is present, or some other family.  But it has been rare to see a father in the courtroom, and even rarer to see the birth-father.  And when he is there, things seem to turn out "better" for the kid, i.e. they don't sit in state-controlled detention, but they get to go home.
 
Maybe the only ultimate answer which doesn't "drill down" any further is: each man himself is responsible for becoming and being a good father, because who can be forced to be good?  Or who can be good for (in place of) another?  Part of my intent is to place blame on men, all men, for we have failed to build a society of men who take honor in being good fathers, and who condemn appropriately all those vices which lead men to abandon their duties instead of shouldering them.  
 
Three social players shape boys into the men they may become: Church, State, and Society.  Briefly, 1) how do each of these approach the role of "fathers"? and 2) what tools do they have to stem the problem of fatherless delinquents?  This is no expert analysis, but it's a soul-crushing problem seeing it face-to-face, even once a week, for a semester, so this is my best shot.
 
The Catholic Church tells men they are created in God's image and called to be virtuous, and the Church claims to have the moral authority to tell men who they are, and how they ought to be.  It tells men to take up their crosses daily, to lay down their lives for others in acts of love, and to be like Christ.  The Church says that marriage or holy orders—both forms of fatherhoodare two primary vocations in life for men.  The Church teaches that men and women are both inherently dignified by being each created in God's perfect image.  Therefore neither is complete in themselves, and all human persons have an inherent dignity which is irrespective of their sex, but they are not "the same"—rather, they are both good, both needed, both an image.  The Church tells men to love their wives, to not be harsh with their children, to provide for their families or risk being kicked out of Christian community (not providing for your relatives, especially your household, is to deny the faith and be damnable).  The Church thus speaks harshly, appropriately, to men who would faint at the obligations of family.  And it holds up a good wife and children as gifts from God—good things, not pathologies.  It tells men: this is who you are, as men you are sons of the Good Father, and as men, being men, you are made to be good fathers; not perfect, but good.
 
Our State tells men they may be required to pay financial restitution for their absence in the lives of their children and their wives (or children's mothers), it tells men to take responsibility for their actions and they will be rewarded.  The State has power to arrest a man and impose jail time as an attempt to compel him to pay this money.  Neither of these replaces a father, obviously, but the State can provide very beneficial services like health care, counseling, and some education.  The State also has the power to remove an abusive father with jail time or restrictions.  The State can give financial benefits to married couples through tax structure, and other recognition which may slightly encourage men to be committed fathers.  The State is forced to deal with young people who don't have adequate care at home when these young people "get into trouble"—where else will they go?  Who will be a father to them?  A pair of parents would be better suited to handle unruly children than one parent alone.  Who can work and keep a teenager out of trouble at the same time?  It's a miracle when it happens, and it should not be ignored.  Juvenile detention is sometimes better for a child than their home life; this is unfortunately true.
 
Our Society tells men they should be kind, they should take responsibility for their actions, they should provide for the needs of others, and they should at the same time be whatever they want to be.  Even if some in our society do encourage fathers, does our current society, with its highest value seeming to be some sort of moral "neutrality," have the tools to do it effectively?  Is "men being men" associated with good fatherhood?  Can we do this?  Should we?  I think we need to do something, but maybe it's hopeless or too fraught with the risk of offending others... Let's not give up so easily.
 
Our society doesn't seem to do much to tell men: You should seek to be a good father.  You should be a good husband, and you have inalienable moral duties to any human beings you create, and any woman you procreate with, whether you want it or not, figure it out beforehand—it's on you.  You should be a good son and a good brother.  You should be a good man, and this entails being a father in one way or another.  And you are made for this, so you can do it.  
 
But there is so much brokenness, and there are so many heart-breaking cases.  Who can take away the sins of the entire world?  It seems impossible that the past suffering of others could be made right by someone else, it seems that harmony could be out of reach.  But maybe we can do more than we think.  And maybe the Church needs to speak more to men, telling us not to neglect fatherhood, but to aspire to it above all other status.  Whether this is seen as "heteronormative" or just what we need right now, I think it would be good.

November 21, 2019 in Current Affairs, Religion | Permalink