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.
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.)
Monday, March 23, 2020
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
Thursday, November 21, 2019
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?
Wednesday, November 13, 2019
The president of the major association of of evangelical Protestant higher-education institutions, the Council of Christian Colleges and Universities (CCCU), has issued a statement in conjunction with the Supreme Court arguments on the DACA-recission case. The CCCU has supported protection for "Dreamers" for a long time, and in the current case it joined an amicus brief supporting DACA's legality. I blog this not for the purpose of discussing the legal issues in the case or endorsing the challenge to the recission.
I only want to call attention to the participation of "Dreamers" in CCCU institutions as one of the countless instances in which faith-based institutions with "traditional" views are contributing to the common good--and in particular, are living and working with, and helping to empower, communities that are vulnerable in some way. Indeed, in significant parts of the country evangelical (and Catholic) higher-education institutions have high percentages of student of color. In our politically polarized times, such work is too often ignored. This is an opportunity to pay attention to it.
From the statement by president Shirley Hoogstra:
This is very close to home for one of our campuses as Norma Ramírez is a PhD candidate in clinical psychology at Fuller Theological Seminary [a CCCU member] and one of the plaintiffs in the case. You can read more of her story here. You can also watch this video to hear from her directly.
The CCCU has supported a permanent solution for Dreamers since the DREAM Act was first introduced in 2001. As part of our ongoing court strategy, we recently signed on to two amicus briefs addressing the Supreme Court cases on DACA. These briefs target crucial ideas to our immigration policy perspective; they argue for the protection of DACA recipients as they contribute to society and to our institutions and in the promotion of defense of human dignity.
The CCCU continues to support a bipartisan, legal, permanent legislative solution for DACA recipients, and feels the urgency of this issue for our students, their families, their employers, their churches, and their communities. What’s at stake? These young people have become integral parts of their communities, and removing them from the U.S. would impose a huge financial, as well as emotional, burden on the country. Beyond the economic arguments, though, we also feel a moral imperative. The CCCU believes that all persons are made by our Creator God, are made in His image, and therefore are endowed with dignity (Genesis 1:27). These young people—and those around them—need stability in order to thrive. Mass deportation would unconscionably break up families.
Friday, October 18, 2019
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."