PrawfsBlawg

Non-State Law and Enforcement

As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.  

One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement.  Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms.  This hurdle has long figured into debates over whether one can properly conceptualize international law as law.

But the focus on enforcement is problematic for a couple of reasons.  First of all, the challenge of enforcement for non-state law is in many ways overstated.  For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement.  Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.  

There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post).  But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law.  In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.

Non-State Law

Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy.  The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law).  But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?   

When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law.  Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project.  But what is often missed is that lessons from international law are  instructive for religious law - and vice versa.

This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week.  To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law.  In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium. 

Great to be back and greetings from Washington!

It's great to be back at Prawfs for another guest-blogging stint.   I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.  

My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.).  To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law."  The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.  

I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate.  For those who share the interest, here's the full schedule for the day:

Symposium Schedule

8:30 a.m. Breakfast (Tillar House)

8:45 Introduction (Michael Helfand (Pepperdine), John Linarelli (Swansea))

9:00 Panel 1—Global Legal Pluralism: Trends and Challenges

• Moderator: John Linarelli (Swansea)
• Panelists: 
  • Paul Schiff Berman (George Washington)
  • Ralf Michaels (Duke)
  • Peer Zumbansen (Osgoode)

10:45 Coffee

11:00  Panel 2—Non-State Law and Non-State Institutions

• Moderator: Donald Earl Childress III (Pepperdine)
• Panelists: 
  • Oren Perez (Bar-Ilan)
  • Sally Merry (NYU)
  • Harlan Cohen (Georgia)
  • Helen Quane (Swansea)

1:00 p.m. Lunch

2:00 Panel 3—The Role of Religion and Culture in Non-State Law

• Moderator: Mortimer Sellers (Baltimore)
• Panelists:
  • Nomi Stolzenberg (USC)
  • Joel Nichols (St. Thomas)
  • Clark Lombardi (Washington)

3:45 Coffee

4:00 Open Forum

5:00 Closing Comments

Why the Movie "Big Fan" Starring Patton Oswalt is Great for Teaching the Free Exercise Clause

If you haven't seen Robert Siegel's 2009 film "Big Fan," starring the hilarious Patton Oswalt as "Paul from Staten Island," a 36 year old bachelor who lives with his mother and whose life revolves around his fanatical devotion to the New York football Giants, then you should go see it as soon as possible.  (Here is the trailer).  I say this even if you're not a law professor who teaches church/state law.  If you are a law professor who teaches church/state law, then consider your obligation to see the movie doubled.

In almost every law and religion class, at some point somebody raises the question of why religion and not other types of belief should be constitutionally protected.  This sometimes transitions into a discussion of the various definitions that scholars and courts have given for "religion," including so-called "content based" definitions, which define belief systems as religious or not religious based on their content, e.g, only a belief in a god or an extra-human source of authority counts as religious.  Many find these content-based definitions unsatisfactory because they exclude belief systems (maybe Taoism, for example) that we generally think of as religious.

So then we talk about so-called functional defintions of religion--those definitions that define what counts as religion w/r/t what role or function the system plays in the person's life.  Maybe each person's "ultimate concern" (as Tillich says) is that person's religion--whether that's Christianity or environmentalism or atheism or their family or whatever.  At this point, someone will generally point out, hey wait, does that mean that someone whose whole life revolves around baseball should be constitutionally protected??  Everyone in the class laughs heartily, although also somewhat uncomfortably, because, let's face it, it's not that easy to identify why precisely someone whose life revolves around environmentalism deserves protection but not someone whose life revolves around the Boston Red Sox.

Or the New York Giants, for that matter.  Under any fuctionalist definition of religion, Paul's maniacal devotion to his favorite football team qualifies.  His fandom is the one thing that gives his life meaning.  He  dresses in Giants clothes, thinks and talks incessantly about the Giants, adorns the room of his boyhood home where he still lives in Giants paraphernalia, has only one friend, with whom he talks almost exclusively about the Giants, and works as a parking lot attentdant so he has the time and opportunity to draft the passionate pro-Giant, anti-Eagle speeches he gives in the middle of the night on sports talk radio.  The religious intensity of Paul's devotion becomes evident in all sorts of ways throughout the movie (I won't ruin it for you)--even the trailer explicitly states that for Paul and his buddy (and lots of other fans as well), football is their religion, and the stadium their church.

I show the trailer at the beginning of my law and religion class and use it to explore the "specialness" (or non-specialness) of religion as compared to other types of belief systems.  The Supreme Court famously said that Adele Sherbert, a Seventh Day Adventist, could not be denied unemployment benefits when she refused to work on Saturday.  What if Paul refused to work on Sunday?  Should he get an exemption from generally applicable laws so that he can worship at his church of choice, even if that "church" is a parking lot outside the stadium where the Giants play (he and his buddy are too poor to buy tickets so they tailgate outside and watch the game on TV from there)?  I find that having a real character to refer to when having this discussion of what, if anything, makes religion unique (and/or how we should define "religion") which tends to extend throughout the semester, makes the discussion richer, more grounded in specifics, and definitely more fun.

Do others use film in this way, or related ways, in their courses?

The Competing Claims of Law and Religion: Who Should Influence Whom?

We attract some extraordinary scholars for symposia here at Pepperdine. In case you hadn’t heard, Malibu is a fantastic place for law professors to spend a weekend in January or February. (The forecast for today, January 22, is mostly sunny, 77 degrees. How’re you feeling?)

But it’s also distinct aspects of the law school that attract great symposia. The school’s religious affiliation, for instance, helped prompt an extraordinary conference last winter, “The Competing Claims of Law and Religions: Who Should Influence Whom?” The Pepperdine Law Review has just published the fruit of that conference. (And, as faculty advisor to the Law Review, I’m fond of reading the products of the students’ diligence.)

If you’re interested, check out the work from Abdullahi A. An-Na'im (Emory), Patrick McKinley Brennan (Villanova), Zachary R. Calo (Valparaiso), Sherman J. Clark (Michigan), Robert F. Cochran Jr. & Michael A. Helfand (Pepperdine), Mohammad H. Fadel (Toronto), Chad Flanders (St. Louis), Richard W. Garnett (Notre Dame), John Lawrence Hill (Indiana McKinley), James Davison Hunter (Virginia), Andrew Koppelman (Northwestern), Michael Stokes Paulsen (St. Thomas), Barak D. Richman (Duke), Susan J. Stabile (St. Thomas), Mark Strasser (Capital), and Eugene Volokh (UCLA). (Whew!) You can browse the entire special issue here.

The Religious Freedom Rights of Corporations and Shareholders

A late and grateful hat tip to Charlotte Garden, who posted last week about the Seventh Circuit's decision in Korte v. Sebelius.  The court granted a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and related regulations requiring that K & L Contractors purchase health care coverage for employees that included abortifacient, contraception, and sterilization coverage.  Accourding to the majority, the plaintiffs had some likelihood of success on their Religious Freedom Restoration Act (RFRA) claim that the required health care coverage put a substantial burden on their free exercise of religion.

Although the case raises a number of interesting issues, I want to focus on the religious freedom rights of corporations and shareholders.  It is the corporation that has the obligations to provide health care coverage with certain coverages.  However, the court seems to find that the corporation's obligations infringe on the religious liberties of the shareholders.  As the court states:

[T]he government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.

In dissent, Judge Rovner took issue with this, but in a somewhat indirect fashion:

Although the Kortes contend that complying with the Patient Protection and Affordable Care Act’s insurance mandate violates their religious liberties, they are removed by multiple steps from the contraceptive services to which they object. First, it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company.

Charlotte Garden takes on the issue of whose religious freedom rights are at issue in her post:

This analysis raises an interesting question about the interplay among the rights of majority shareholders, managers, and corporations after Citizens United. The Seventh Circuit seems to treat them as essentially overlapping, so that government regulation of corporations would be unlawful if it violates the rights of one, two, or all three of the above.  But it seems to me that Citizens United could also support the contrary result. For example, if the funds of dissenting shareholders can be used for political speech without violating the First Amendment, then why can’t the Kortes’ funds be used for K&L’s contraception coverage without violating their RFRA rights? The Seventh Circuit doesn’t answer this question, though it seems its answer would have to turn on whether or not the shareholders in question were in the majority—a result that seems both counterintuitive and at odds with the Supreme Court’s approach to dissenters’ rights in other context, including the union dues context.

I agree with Charlotte's thinking here.  It is the corporation that is being forced to provide a certain level of health insurance to employees.  When does a corporation have rights of religious freedom?  The court characterizes the company as "secular," and it is clearly not a religious organization. And if it is the Kortes, rather than the corporation, whose rights are being infringed, when do actions taken with respect to a business entity impinge upon the rights of stakeholders?  The court mentions that the Kortes are 88% shareholders and that the business is run by the family according to their religious beliefs.  Are these material facts?  What if they owned 51% of the company, but it was run by someone else?  What if they owned 33% but had de facto control?  What if they owned a single share?

This case reminds me in part of Thinket Ink Information Systems v. Sun Microsoft, 368 F.3d 1053 (9th Cir. 2004).  In that case, the court held that a corporation had a right to bring suit under 42 U.S.C. Sec. 1981 for discrimination based on race.  Although noting that a corporation generally does not have a racial identity, the court found that in the particular case, Thinket had "acquired an imputed racial identity" sufficient to bring a claim.  The court stated that: "[t]o receive certain governmental benefits, Thinket was required to be certified as a corporation with a racial identity; further, it alleges that it suffered discrimination because all of its shareholders were African–American."  This was enough to give the corporation itself standing under Sec. 1981.

At the time, Stephen Bainbridge characterized the Thinket decision as "just nuts" because the corporation was just a legal fiction and instead represented a nexus of contracts.  However, he did allow that "[i]t may be useful to invoke that fiction here, so as to promote administrative convenience by allowing the entity rather than its individual constituents to sue, but it doesn't  change the basic theory."  A similar problem may be presented here.  But at the least, a court should establish whether it is the corporation or the shareholders who have standing to sue for actions required of the corporation.  And if it's the shareholders who have standing to sue, it seems unclear when they would be sufficiently entwined with the corporation to get that standing.

Mandatory public education

At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting.  Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."

In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives).  Marc raises some important and interesting questions about it.  I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but -- as I tried to flesh out in more detail, a few years ago, here -- the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge.  (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.)  A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.      

The Citizens United Link to the Affordable Care Act Litigation

It’s not too often that I try to draw a line between my own field of Election Law and the much less familiar field involving the Religion Clauses. That’s a universe I tend to leave to the very capable hands of folks like Rick Garnett, Michael Helfand, and Paul Horwitz. But recent litigation did part of the work, and it raised important issues that, I think, the Supreme Court is ultimately going to need to consider. And it has to do with who, or what, is a person.

In 2010, the Supreme Court handed down its opinion in Citizens United v. FEC, which, among other things, struck down limitations on corporate independent expenditures in the Bipartisan Campaign Reform Act of 2002. One important element of the opinion was the conclusion that the identity of the speaker—in that case, a for-profit corporation—could not be subjected to special restrictions on political expenditures.

This conclusion, according to one justice, prompted pithy bumper stickers regarding corporate personhood. But it’s important to note that even the dissent agreed on larger point: that corporations have First Amendment rights. It’s just that the dissent argued that Congress had a compelling reason to single out for-profit corporations (because of, among other things, their perpetual life, and their ability to aggregate wealth through special tax structures); the majority found no such compelling reason to single out one corporate form over others.

And the dispute was, uniquely, about for-profit corporations. The Supreme Court had previously accepted expenditure limitations placed upon for-profit corporations but routinely rejected similar limitations for media corporations and non-profit “ideological” corporations. In Citizens United, the Court, revisiting its precedent, rejected the argument that Congress had articulated any meaningful distinction that merited a set of rules restricting expenditures for for-profit corporations.

A similar debate is brewing in the context of the Patient Protection and Affordable Care Act. Employers offering health insurance plans must include coverage for FDA-approved contraceptives (including what the FDA calls “emergency contraceptives,” sometimes known as “abortifacients”), sterilization procedures, and other reproduction-related services.

A very small set of “religious employers” is exempt. But there are many more for-profit corporations owned and operated by religious adherents. These corporations may not fit the narrow exemption for “religious employers,” and religious adherents have argued vociferously that even ostensibly “secular” businesses fall under the scope of the Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”). (There are, of course, nuances between constitutional interpretation and statutory interpretation, which may yield different results.)

Do they? District courts in Colorado, the District of Columbia, and Missouri have punted on the issue. A district court in Oklahoma did the same, in part; but, it also found that, absent precedent that “secular, for-profit corporations” have free exercise rights, plaintiffs failed in their Free Exercise Claims. It also suggested that RFRA applied to “religious organizations, not general business corporations.” Justice Sotomayor, in denying an injunction, specifically noted that the Supreme Court has not addressed “similar RFRA or free exer­cise claims brought by closely held for-profit corporations and their controlling shareholders.”

Well, do they? Can the Supreme Court ascribe a telos to for-profit corporations? Does it matter that Hobby Lobby is closed on Sundays? That Mardel Christian bookstores are “dedicated to renewing minds and transforming lives”? If there’s a possible theological dimension to Division I FBS football, would we (or should we) care?

Jonathan Adler isn’t necessarily persuaded. Ed Whelan is. And Josh Blackman is asking questions.

The same questions arose in Citizens United, and they arise here again. There, no one really disputed that media and non-profit ideological corporations had First Amendment protection. Here, no one really disputes that, say, a religious group called O Centro Espirita Beneficiente Uniao Do Vegetal has First Amendment protection.

When it comes to for-profit corporations, however, there are hints (and this is my modest prediction) that the Court’s refusal to inquire into the purpose or form of the corporation in the election law context may very well apply to the religious liberties context. The burdens placed upon corporations are likely to face the same scrutiny, regardless of the purpose or the form of the corporation. And that means, businesses like Hobby Lobby, under the Court’s precedent in Citizens United, would be treated as any other individual, church, or non-profit organization making a Free Exercise claim.

But, would anyone hazard to make a bolder claim?

The Varieties of Co-Religionist Commerce II

As I promised (or threatened?) in my last post, I want to think about "co-religionist commerce" by dividing it up into institutionalist and non-institutionalist domains.  In the past, I''ve written and blogged a bit about non-institutional co-religionist commerce - and I'll probably say a bit more about it sometime later this month - but I've recently been working on the institutional side of things in a recent article, Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. (forthcoming 2013).

As per the title, what I have in mind in the institutional context are some of the debates over "church autonomy" - that is, debates over the autonomy granted religious institutions over internal decision-making and disputes resolution.  Popular advocates of what we might term "religious institutionalism" (i.e. strong protection of religious institutional autonomy) include Prawfs own Rick Garnett (e.g. here) and Paul Hortwitz (e.g. here) and also Steven Smith (e.g. here).  Recent debates on this front include those over the contraception mandate and those over the ministerial exception, which (at a minimum) exempts the relationship between churches and their ministers from liability under various anti-discrimination statutes.  Among other issues, both of these examples represent some of the inherent complexities of co-religionist commerce; it is frequently difficult to establish the appropriate boundaries for the interpretation, enforcement and regulation of conduct that is motivated by both religious and commercial interests mix.

As has been discussed here on Prawfs previously, there has been some recent push back against this type of religious institutionalism, most notably the recent article by Richard Schragger and Micah Schwartzman, "Against Religious Institutionalism."  Much of this criticism has focused on whether religious institutions should have an rights that are not simply derivative of the individual rights of their members.  Schragger and Schwartzman simply don't see the existence of a religious institution as adding any reason for increased constitutional protections.

In my next post, I'll give my own take, which tries to strike a balance in between religious institutionalists and their critics.

Confusion about Separation

This blog post, "Of Babies and Beans," by Adam Gopnik, at The New Yorker, is mainly about abortion (and about what Paul Ryan said during the vice-presidential debate on the subject) but it also included some sharp -- but I think misguided -- criticism of what Ryan said about the role of religious faith in citizens' "public" lives.  Gopnik characterizes as "disturbing and scary" what struck me as Ryan's (to me)unremarkable observation that “I don’t see how a person can separate their public life  from their private life or from their faith. Our faith informs us in everything  we do.”  Here's Gopnik:

That’s a shocking answer—a mullah’s answer, what those scary Iranian “Ayatollahs” he kept referring to when talking about Iran would say as well.  Ryan was rejecting secularism itself, casually insisting, as the Roman Catholic  Andrew Sullivan put it, that “the usual necessary distinction between politics  and religion, between state and church, cannot and should not exist.”  . . .

. . .  Our faith should not inform us in everything we do, or there would be no end to  the religious warfare that our tolerant founders feared.

Now, I believe strongly -- in part for "religious" reasons -- in the separation of church and state, properly understood.  But Ryan did not say that the "distinction between politics and religion" or the distinction between "church and state" (which is a different distinction) "should not exist"; and there is nothing mullah-ish about the statement that faith "informs" people's lives -- public and private -- comprehensively.  He didn't say that the positive law should enforce religious teachings or require religious practices, and there's nothing contrary to "secularism" (properly understood) in his statement.

Which reminds me . . . I participated this past weekend, along with a number of Prawfs-bloggers and friends, in a really stimulating and fun roundtable conference at the University of San Diego's new Institute for Law and Religion, on "The Freedom of the Church in the Modern Era."  Our own Paul Horwitz's work on the subject was, of course, at center-stage!  More on this later (I hope!).   

 

Checking In

Thanks to Dan for the invitation to guest-blog this month.  I like the characterization of Sukkot as a holiday of palm fronds and lemony fruit – it sounds so tropical!  Here in Boston, Sukkot also means drizzly rain and an abundance of warty gourds.  Chag sameach.

During my stint, I plan to post some thoughts on civil justice reform, next month’s judicial elections, and the antebellum Supreme Court’s unhealthy obsession with commas.  I look forward to your comments.

"Keep America Weird": One way to think about the HHS mandate . . .

William Mattox writes, in USA Today, that for reasons similar to those that (rightly) make Austin residents eager to "Keep Austin Weird", we should oppose policies like the HHS mandate that have the effect, even if not the aim, of standardizing and homogenizing the sometimes-"weird" institutions and associations of civil society:

    I worry that Obama's health care plan is doing to Catholics what those cookie-cutter national chains were threatening to do to Austin's bohemians: Rob them of their distinctive identity. Of their unique character. Of their freedom to be authentic.

    Yes, I know Obama's contraception mandate provides an exception for Catholic churches. But it offers no such relief to those running Catholic schools, hospitals and charities who want to live out their faith (and follow their church's teachings) on more than just Sundays. In essence, the Obama administration's message to these Catholics, despite a cosmetic compromise, is akin to telling Austin's bohemians that they can dress like hipsters on the weekends so long as they behave like corporate shills Monday through Friday. . . .

Well, my thirteen-year-old daughter certainly thinks I'm weird . . .  I guess there are worse things!

Why are religious questions out of bounds?

Hello Prawfsblawg participants!  It's great to be back -- during my last stint as a prof, a VAP at BU a few years back, I was an occasional contributor to this fine site.  And now, as I'm going on the AALS job market for real this fall, it's a pleasure to be back in the PB saddle, as it were.  

My two main areas of interest are law & religion, and law & sexuality -- or, best, a combination of the two.  I've just finished my Ph.D. in religious studies at Hebrew University, and in my non-prawf time, have been an activist for LGBT people in religious communities.  To avoid the taint of self-promotion, I'll omit the title of my book here...

I thought I'd start my new Prawfs career with a question that some people find obvious, but which I find to be a conundrum: why, in elections, are religious questions out of bounds?

As a scholar of religion, I'm used to inquiring into why people hold religious beliefs -- even ones which strike non-believers as absurd -- and of course as a legal academic, I'm accustomed to the social-constitutional norm of separating religious and political questions.  But, particularly on the religious studies side, there's no clear reason why judgment calls when it comes to religion are somehow insulated from judgment calls in every other area of life.

Consider an extreme example.  If a presidential candidate were a member of a UFO cult, and believed that aliens were going to scoop up all believers in 2013, we might reasonably ask whether such beliefs are incompatible with the long-term vision and planning required of a president -- right?  

Obviously, my question here is really about Mormonism, a newish religion which has some tenets most Americans will find very strange.  Why is it unfair, as a matter of evaluating Mitt Romney's judgment, to ask whether he believes that God is a corporeal human being?  Or whether Romney expects to be physically reincarnated on his own planet?  Or whether he believed, prior to 1978, that African-Americans were cursed to be dark-skinned (2 Nephi 5:21), or that dead people could be posthumously baptized?  Or how about the cardinal principle of the faith, namely that Joseph Smith discovered golden plates engraved in a foreign language on September 22, 1823, in Manchester, NY -- plates he later returned to an angel?

It's considered doubly verboten to criticize any of these tenets of the faith: first, because Mormonism was, for almost a century, the object of bitter persecution, and second, because questioning someone's religious beliefs is supposed to be off-limits in American political discourse.  After all, no one would question a candidate's belief that an omnipresent and incorporeal deity impregnated a 1st-century Palestinian woman, or parted the Red Sea.  And the only thing that distinguishes these preposterous beliefs from Mormon ones would seem to be that the former are older and more widespread.

But there are some distinctions.

First, Romney is not just a rank-and-file Mormon.  He was a bishop -- not as big a deal as it sounds, since Mormon bishops are locally-appointed and limited in power, but still a big deal.  This is someone who has really bought into these beliefs.  Doesn't it matter if the beliefs are, well, absurd?

Second, these beliefs may strike millions of people as deeply troubling, and Romney has not been forthright about them.  To take but one example, Christians don't believe that God is a corporeal being who has had sexwith women.  For Romney, like other Mormons, to glide over the differences between Mormonism and Christianity is dishonest.

Third, religious beliefs, like other beliefs, tell us about the character of the believer and what we may reasonably expect her/him to do.  By way of parallel, I think it mattered a lot that George W. Bush was a Biblical literalist and born-again Christian, and I think it was irresponsible that mainstream media never made much of this.  I think we can trace many of his demonstrably harmful policy decisions to his religious beliefs: the war in Iraq, his destiny as a world leader, the clash of civilizations, and so on.  It's not as if all our "secular" decisionmaking takes place in one part of the brain, and religious decisionmaking takes place in the other.  Religious beliefs are as germane to being president as ideological ones.

Now, it may not be a negative for Romney that he believes some of this stuff.  America is a heavily religious country, and Romney's faith may be an asset.   It's also unclear what the effect of a more honest discourse about religion and politicians would have on Romney's opponent, a longtime Christian who many Americans still believe is a Muslim. Surely Obama would be loathe for anyone to remember his former pastor, Jeremiah Wright, or for anyone to question the secondary role religion has played in his life.  No doubt the Obama people are happy to let sleeping dogs lie when it comes to religion.

But I'm not interested in the partisan net gain here.  I think it's crazy that our country is considering electing someone who holds beliefs that I find to be so completely untenable -- and I say this not just as a religion scholar but as a somewhat practicing (if not exactly believing) Jew who has written two books on Jewish spirituality.  I'm perfectly willing for my religious beliefs to be scrutinized, and I think the way in which I hold them is absolutely relevant to my overall personality.  If I were willing to believe what Mitt Romney is apparently willing to believe, I wouldn't trust myself.

Thoughts?  Disagreements?  I'm working on a larger article on these subjects, so I'm especially eager to hear what you have to say.

Employees with Religious Attire and the "Back of the Bus"

As a fellow at the Pluralism Project, a Harvard-based research center that explores the state of religious liberty in the United States, I examined an employment discrimination case involving Kevin Harrington -- a native New Yorker of Irish descent who converted to Sikhism as a youth and who has worked for the New York Metropolitan Transportation Authority since the 1980's. Harrington started working for the MTA as a bus cleaner, and for the last two decades has been an MTA train operator.  On 9/11, Harrington was able to reverse his Number 4 train, which was headed to the World Trade Center station, and safely discharge his passengers.  For this, Harrington was honored by the MTA.

Shortly after 9/11, however, Harrington claimed that the MTA discriminated against him on the basis of his religion.  Harrington specifically stated that the MTA informed him that he had two choices: that he could continue working as a train operator only if he wore a cap with MTA's logo, or that he could wear his religiously-mandated turban in the railyard, away from customers.  The MTA then told Harrington that he could wear a turban as a train operator only if he attached an MTA logo to it.  The MTA apparently explained that the logo was necessary to alert customers and passengers that the person at the helm of the train was indeed an MTA employee -- not, as some would say, a "runaway terrorist."  Newsday ran an editorial arguing that "perhaps [the logo] will ward off any biased fears that outsiders have commandeered the system."

The MTA was eventually sued by the Department of Justice, the Center for Constitutional Rights, and the Sikh Coalition, on the theories that the employer's generally applicable uniform policy was being selectively enforced against Sikhs and Muslims, including Harrington, and that the out-of-customer-view option was impermissible under Title VII.  A CCR attorney, for example, stated that the MTA engaged in "a calculated attempt" to hide certain workers "on the grounds that they 'look Muslim' and might alarm the public for that reason."  Yesterday, the MTA settled the case, agreeing to permit employees to wear religious headgear without the logo and to pay $184,500 to eight current and former MTA employees. 

As I noted in this forthcoming article, some may assume understandably that Title VII does not tolerate employers' attempts to place employees with conspicuous religious attire in the back areas, where these attempts are tied to actual or perceived customer preferences.  But federal courts have sided with employers in this context.  This settlement may help undercut the view that employers can place employees with distinct religious appearances out of sight without running afoul of Title VII's protections.

This case also lends support to the suggestion that the Department of Justice has taken great interest in religious liberty issues.  (Though, in fairness, I should note that an astute reader has expressed to me the concern that the Department may be conflicted or divided as to the extent to which it is willing to robustly enforce statutes safeguarding religous liberty, including RLUIPA.  The reader points specifically to the Solicitor General's position recommending that cert in a case involving a RLUIPA circuit split be denied or granted and summarily reversed. )

The title of  this post is taken from a Sikh Coalition attorney's comment that the MTA's initial choice to Harrington was a "back-of-the-bus solution."

On the Alleged Cultural Insensitivity of the Fojol Bros.

The Fojol Bros. is one of the most popular food trucks in Washington, DC and is partly responsible for the popularity of food trucks in the nation's capital more generally.  It is also at the heart of a recent and growing controversy about race and culture.  The Fojol Bros. -- a self-described "traveling culinary carnival" that offers Indian, Ethiopian, and Thai food -- has come under fire for the manner in which they sell their food.  In particular, the food truck purveyors, who are all said to be white, wear turbans and fake novelty mustaches, and play Indian music  in the background (see this Travel Channel spotlight of the food truck).

This led DC local Drew Franklin to issue an "Open Letter to the 'Fojol' Bro-dawgs" on Facebook, in which he charged that those behind the food truck are "brazenly insulting of others' cultures," "over-the-top racist," "worthy ambassadors of poor taste," "faux-mustachioed goons," and "well-meaning (if woefully misguided) white boys with a contemptible sense of humor."  Franklin determines that the Fojol Bros. approach is "not cool," "decidedly uncool," "unacceptable," and "an embarrassment to my city."  An online petition subsequently emerged, declaring that the purveyors' presentation amounts to a "stereotype and mockery," and imploring visitors to make clear that they "are not OK with their Orientalist and racist appropriation of South Asian and East African cultures." As of today, the petition has been signed by over 1,000 people -- a not insignificant number.  A writer with the Washington City Paper -- which I read regularly when I lived in DC -- agrees with the critics, calling the ethnic aesthetic of the Fojol Bros. "unsettling and offensive and lazy all at once."

As a Sikh of Indian descent whose members of my immediate and extended family wear turbans and have beards, as someone whose civil rights work and entry into academia was triggered by post-9/11 discrimination against Muslims, Sikhs and South Asians, and as someone who has written about the post-9/11 experiences of Sikhs in book, journal, and essay formats, I believe I am within the zone of those who are implicated by and can speak to the Fojol Bros. tactics.   My preliminary verdict: as with Johnny Carson's Carnac and ESPN's Tony Kornheiser (who both predated the "hipster" fad), I find the Fojol Bros.' schtick tacky, but not offensive or racist.  

First, there is the argument, as a Columbia sociology professor told The Washington Post, that the Fojol Bros. "'harken[s] back to a colonial period when it was okay to exoticize' other cultures."  Put more directly, angry asian man, a popular blog that provides sharp commentary on racial issues involving Asian-Americans, opines that the Fojol Bros. are "totally colorblind -- and I mean that in the worst way -- of the privilege that makes [them] think this is okay."  It seems to me that intent is a relevant, if not important, consideration in weighing the propriety of this food truck's schtick.  Whereas colonialists and some whites may have appropriated certain cultural elements in the course of subjugating other people, or based such appropriation on feelings of entitlement or superiority, I do not see any evidence that this is taking place here.  Justin Vitarello, one of the food truck's owners, for example, says of turbans: "They're beautiful. They're comfortable. They're colorful."  The Fojol Bros. appear to be engaged in an attempt to be whimsical and light, rather than one to belittle or marginalize. 

For the same reason, the highly-charged criticism that the Fojol Bros. is participating in a "minstrel act" fails to persuade.  Minstrel shows generally portrayed African-Americans in a negative light as slow, lazy, dumb, and incompetent, etc.  As far as I can tell, there are no such characterizations by the Fojol Bros. -- there is no "brown-face," "[t]here's no accents" as Vitarello notes, and there are no negative behavioral or mental traits that are stereotyped or caricatured.  (These qualities make the food truck distinct from Ashton Kutcher's "brown-face" depiction of "Raj," a generic Bollywood producer).  It seems, rather, that the Fojol Bros. act and speak as they normally do, though they happen to wear turbans and fake mustaches, while listening to Indian music. 

To be sure, in some instances the wearing of some cultural or ethnic elements may, by itself, give rise to reasonable charges of racism -- even if the wearer does not intend any harm, even if there is no accent, and even if there is no skin alteration or manipulation of facial features.  That does not mean, though, that any wearing of certain items automatically supports a charge of racism.  In other words, even eschewing an inquiry into the purveyors' subjective intent, it has not been clearly demonstrated that the wearing of the colorful turbans and fake mustaches is objectively racist or improper.

As far as turbans are concerned, I acknowledge that turbans, for some, are sacred pieces of attire that are effectively extensions of one's self.  But turbans are not categorically sacred or significant.  The religious do not have a monopoly on the use of turbans or their meaning.  In fact, turbans are worn by different people (e.g., the religious and non-religious, Sikhs, Muslims, Afghans, Indians, Iranians, Persians, and North Africans) for different reasons (e.g., "to signify their class, caste, profession or religious affiliation," or "to demonstrate their wealth and power").  Indeed, I have attended a number of weddings where white men, who are usually part of the groom's party, wear turbans of the same exact sort worn by the Fojol Bros.  Not once did I hear or witness an objection to these individuals' wearing of a turban as part of the wedding events.  These individuals, it seems to me, wore the turbans to be festive, and the Fojol Bros. appear to be doing so as well.  The only difference, then, is that the individuals at weddings effectively had "our" permission and approval, whereas the Fojol Bros. don't.  That difference does not, in my view, justify the view that one is offensive and racist, while the other not.  (It is true that the Fojol Bros. are engaged in a commercial enterprise rather than a wedding -- but the underlying festive motivation may be comparable if not identical.  Others, such as artists Andre 3000 and Snoop Dogg, have worn turbans as part of their commercial persona, the latter of which was largely celebrated by Indians and Sikhs.  The commercial nature of wearing turbans, therefore, does not transform the wearing into something "wrong.")

Thus, it is difficult to contend that the Fojol Bros. are extending colonialist attitudes or ambitions, or are taking advantage of some dominant or exceptionalist mindset that enables them to poke fun at the other with impunity.  Moreover, their schtick seems to be qualitatively different than minstrel shows.  Nor does the wearing of turbans, on its own, objectively signify disrespect.

Let me be so bold as to suggest that Fojol Bros. may be doing a favor to targeted communities.  After 9/11, turbans became equated with terrorism, due to the fact that Osama bin Laden and his cronies wore turbans and their images were broadcast regularly on television.  Some Sikh civil rights activists and I used to remark that we have been unable to offer the American public an alternative to the turban-means-terrorism reflex.  Perhaps the Fojol Bros. can help diminish the turban's terrorist connotation, if not normalize the turban, such that people will see it as something other than a marker or cue for hatred, anger, and violence. 

At bottom, it seems to me that the fuss over the Fojol Bros. amounts to purely subjective instincts or judgments as to what is "offensive," "wrong," or "not cool."  As the Supreme Court has said, “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971), and relatedly “what is contemptuous to one man may be a work of art to another,” Smith v. Goguen, 415 U.S. 566, 573 (1974).  Such subjective viewpoints hardly constitute a sound reason to compel the Fojol Bros. to change their ways.

A final note: while I conferred with multiple turbaned Sikhs in writing this post, I do not claim to speak for other Sikhs, Indians, or South Asians on the subject.  Of course, individuals within and outside of these groups are free to weigh in on the controversy as they see fit.  And whether the Fojol Bros. schtick is a wise business move is beyond the scope of this post.  This is to only note that, for my purposes, I do not find the schtick offensive or racist.  I honestly commend the critics for expressing themselves in word and in action by refusing to do business with this food truck.  The Fojol Bros. may very well go on without the turbans and mustaches -- but I suspect it will be due to the prospect of lost profits, not the force of any critics' advanced principles.

Religion, Hair, and Prisons

This post follows Sam's excellent comments on the Department of Justice's robust enforcement of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") under the Obama Administration.  I share Sam's view that the charge that President Obama is "waging a war on religion" is tough to square with his administration's significant RLUIPA enforcement efforts.  As religious liberty in the penal context is of particular interest to me, I wanted to add a few items to the conversation that Sam started.

Before doing so, a little background: RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . even if the burden results from a rule of general applicability,” unless the burden (1) “is in furtherance of a compelling governmental interest”; and (2) “is the least restrictive means of furthering that compelling governmental interest.”  RLUIPA -- passed after the Supreme Court's decision invalidating the Religious Freedom Restoration Act as it applied to States -- attempts to restore heightened protection for the religious freedom of incarcerated individuals.

The generally applicable prison rules that I'd like to focus on are inmate grooming standards, which, broadly speaking, restrict the ability of prisoners to grow their hair or maintain facial hair.  Georgia, for example, requires that inmates' hair must be no longer than three inches in length; mustaches that "extend beyond the edge of the mouth" are prohibited; and beards and goatees are prohibited.  Prison officials generally offer four basic justifications for these restrictive grooming policies: they prevent inmates from drastically altering their appearance and thus limit inmates' ability to evade easy identification in the event of an escape or major incident; they are necessary for security purposes in that they make it more difficult for inmates to hide contraband; they ensure good hygiene; and they promote order and discipline. 

These rules may conflict, however, with the religious requirements of inmates, such as Muslims, Sikhs, Native Americans, and Rastafarians, who are forbidden from cutting their hair.  The question, given this "substantial burden" on these inmates' religious exercise, is whether restrictive inmate grooming policies can survive strict scrutiny.  In an article forthcoming in the University of Miami Law Review, I highlight three questions that are relevant for courts asked to resolve this question in particular cases:

First, in defending the restrictive grooming policies, can prison officials rely on generalized statements that the policies further compelling state interests in say identification or security, or, by contrast, must the prison officials put forth particularlized evidence that the specific inmates challenging the rules have given rise to the concerns (e.g., security) that would justify restrictions on their religious freedom?  The Department of Justice seems to have taken the latter view, arguing in one case for example that the prison officials have “the burden of showing that security, their asserted compelling interest, is actually furthered by banning . . . specific Plaintiffs from having long hair.”  I agree with the Department's take, as such case-by-case adjudication is more consistent with RLUIPA's protections than allowing prisons to avoid meaningful judicial scrutiny by merely reciting their general penological interests.

Second, what is the relevance of medical exemptions to generally-applicable grooming policies under RLUIPA?  Some would say there is no relationship between the two.  The Eleventh Circuit, for example, stated that, “the existence of the medical exemption does not in any way defeat [the state’s] claimed interests in support of the shaving and hair length regulations.”  It seems to me that granting exemptions from grooming standards to inmates with medical issues undermines the argument that the policies must remain in effect as to those with conflicting religious requirements.

Third, what is the relevance of the fact that most States and the federal Bureau of Prisons do not have restrictive grooming policies, despite possessing the same underlying penological interests?  My fantastic research assistants have discovered that thirty-nine States and the federal Bureau of Prisons do not have restrictive inmate grooming policies on the books, leaving only eleven, including Georgia, that do.  The scoreboard is in flux, trending towards the thirty-nine.  In one of the cases that Sam links to, Basra v. Cate, the Department of Justice challenged California's restrictive grooming policies, leading California to settle the case -- it will allow inmates to maintain beards and long hair for religious reasons.  California houses approximately 144,000 prisoners; the federal Bureau of Prisons about 208,000.  It seems to me that States with restrictive inmate grooming standards must explain why it is necessary for them to maintain such requirements, even though most jurisdictions are able to satisfy the same penological interests without resorting to restrictions on inmates' religious exercise. 

At the end of the day, I call for a framework in which restrictive inmate grooming policies may not be imposed on inmates with religious beliefs that require followers to wear beards or have long hair, unless the prison officials offer evidence of actual or threatened risks to compelling penological interests as to the specific plaintiffs or inmates in question.  The Fourth, Fifth, and Eleventh circuits, at present, have upheld restrictive grooming codes. (Justice O'Connor is sitting by designation in a pending Fourth Circuit case, Couch v. Jabe, that involves a RLUIPA challenge to Virginia's restrictive inmate grooming policies; the Department of Justice has intervened in a pending Fifth Circuit case; and my article focuses on the Eleventh Circuit.)  

The Department deserves a lot of credit for dedicating itself to this area of law, which does not get a lot of press or attention, and for seeking to expand the religious rights of inmates to their statutory maximum.

App Enables Users to File Complaints of Airport Profiling

Following the terrorist attacks of September 11, 2001, Muslims and those perceived to be Muslim in the United States have been subjected to public and private acts of discrimination and hate violence.  Sikhs -- members of a distinct monotheistic religion founded in 15th century India -- have suffered the "disproportionate brunt" of this post-9/11 backlash.  There generally are two reasons for this.  The first concerns appearance: Sikh males wear turbans and beards, and this visual similiarity to Osama bin Laden and his associates made Sikhs an accessible and superficial target for post-9/11 emotion and scrutiny.  The second relates to ignorance: many Americans are unaware of Sikhism and of Sikh identity in particular. 

Accordingly, after 9/11, Sikhs in the United States have been murdered, stabbed, assaulted, and harassed; they also have faced discrimination in various contexts, including airports, the physical space where post-9/11 sensitivities are likely and understandably most acute.  The Sikh Coalition, an organization founded in the hours after 9/11 to advocate on behalf of Sikh-Americans, reported that 64% of Sikh-Americans felt that they had been singled-out for additional screening in airports and, at one major airport (San Francisco International), nearly 100% of turbaned Sikhs received additional screening. (A t-shirt, modeled here by Sikh actor Waris Ahluwalia and created by a Sikh-owned company, makes light of this phenomenon.)

In response to such "airport profiling," the Sikh Coalition announced the launch of a new app (Apple, Android), which "allows users to report instances of airport profiling [to the Transportation Security Administration (TSA)] in real time."  The Coalition states that the app, called "FlyRights," is the "first mobile app to combat racial profiling."  The TSA has indicated that grievances sent to the agency by way of the app will be treated as official complaints. 

News of the app's release has generated significant press coverage.  For example, the New York Times, ABC, Washington Post, and CNN picked up the app's announcement.  (Unfortunately, multiple outlets could not resist the predictable line, 'Profiled at the airport? There’s an app for that.')  Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund, tweeted, "#FlyRights is a vanguard in civil and human rights."

It will be interesting to see whether this app will increase TSA accountability, quell profiling in the airport setting, and, more broadly, trigger other technological advances in the civil rights arena.

 

"Federal Arbitration Act, Meet Church Autonomy"

Last week, a Florida Circuit court addressed the enforceability of the arbitration agreement used by the Church of Scientology when enrolling new members.  The battle over the arbitration agreement arose as part of a suit filed by two former members of the Church of Scientology, where the plaintiffs alleged that the Church of Scientology had wrongfully retained over $27,000 that should have been refunded to them.  

At issue was whether the agreement was enforceable given that the selected arbitrators all had to be "Scientologists in good standing with the Mother Church."  According to the plaintiffs, this amounted to requiring arbitration proceedings so unfair that the court could not compel arbitration.

So far this debate is relatively standard.  The court compelled arbitration although the plaintiffs will presumably appeal - and they appear to have pretty good grounds for the appeal (this case, in many ways resembles, Hooters of America v. Phillips, 173 F.3d 933 (4th Cir. 1999), where the court invalidated an arbitration agreement because, among other issues, "the employee's arbitrator and the third arbitrator [had to] be  selected from a list of arbitrators created exclusively by Hooters").  If the plaintiffs successfully demonstrate on appeal that the arbitrator elegibility rules - as required by the contract - so unduly prejudice the process in favor of the Church of Scientology, then the plaintiffs have a good shot at rendering the agreement unenforceable.

But that's where the case gets interesting.  The Church of Scientology's primary defense in its court filings was not based on arbitration law; it was based on First Amendment doctrine.  

According to the the Church of Scientology, the court had to abstain from intervening in the dispute because doing so would impermissibly trespass on the Church of Scientology's religious institutional rights - often termed the "church autonomy doctrine" (think here, the long line of church property cases and the Supreme Court's recent decision in Hosanna Tabor).  Indeed, the Church of Scientology even incorporated this argument into the arbitration agreement itself, which states:

"I understand and acknowledge that because of constituional prohibitions which forbid governmental interference with religious services or dispute resolution procedures, that in the event I have a dispute . . . resolution of that dispute . . . may be pursued solely through the internal procedures of the Church's Ethics, Justice and Binding Religious Arbitration System."

And here's the challenge for cases where the Federal Arbitration Act meets the church autonomy doctrine.  While the FAA has grounds for voiding arbitration agreements and vacating arbitration awards that include fraud, misconduct and collusion, the church autonomy doctrine does not.  In fact, while the Supreme Court originally held in its 1929 decision Gonzalez v. Roman Catholic Archbishop that it would consider the decisions of “the proper church tribunals . . . as conclusive” only in the absence of “fraud, collusion, or arbitrariness,” the Supreme Court all-but rejected these exceptions in its 1976 decision Serbian E. Orthodox Diocese v. Milivojevich.  The Court's refusal to use review religious institutional decisions for fraud, collusion or arbitrariness flowed from an oft-cited constitutional proposition: courts cannot adjudicate claims that turn on religious doctrine or practice.  And to evaluate claims of fraud, collusion or arbitrariness would inevitably lead courts to engage in that precise type of inquiry.

All this leaves former-members of the Church of Scientology with two hoops to jump through.  First, they would have to successfully claim that the arbitrator-selection process is so grossly biased that it should render the arbitration agreement unenforceable.  Second, they would have to circumvent the church autonomy doctrine and, at least under current constitutional doctrine, I'm not sure they can.

So where does this leave us?  One of the aims of my current project - an article titled Litigating Religion - is to bring back the old constitutional regime of Gonzalez and thereby harmonize how the First Amendment treats religious disputes with how the FAA treats religious disputes - and to do this all in the name of religious institutional autonomy.  But an explanation for why will have to wait until the next post.

Religion Meets Commerce

I'm in the midst of preparations (along with Bob Cochran) for the upcoming Third Annual Religious Legal Theory Conference, "The Competing Claims of Law & Religion: Who Should Influence Whom," which will be hosted by Pepperdine Law School on February 23-25.  We're anticipating over 70 speakers, including Prawfs Rick Garnett and Paul Horwitz.

Putting together the panels for the conference has been an extraordinary treat - although at times it feels like one of those LSAT logic games - with so many amazing speakers joining us for the conference.  As should be expected, many of the submitted proposals bring new perspectives to some of the classic constitutional law & religion topics: religious accommodation, neutrality towards religion, questions of conscience etc.

But one of the interesting trends I noticed was an increasing number of papers addressing what I would term "religion meets commerce."  For example, presentations at the conference are slated to include Barak Richman's paper on the impact of the Sherman Anti-Trust Act on hiring within religious organizations, Lyman Johnson's paper the role of religious norms in constructing fiduciary obligations, and  Todd Williams' paper addressing sharia compliant finance.  Of course, such topics frequently incorporate questions of constitutional law.  But importantly, such topics also push law & religion beyond the confines of constitutional law and into the sphere of private law. 

I've previously expressed (or maybe implied) here on Prawfs my enthusiasm for law & religion breaking out of its constitutional law mold and engaging more questions of private law.  In my recent article Religious Arbitration and the New Multiculturalism, I try to highlight how thinking critically about contract doctrines like public policy and unconscionability will play a major role in shaping the extent of authority and autonomy experienced by religious groups.   And, to the extent questions revolving around the Free Exercise and Establishment Clauses get caught in a doctrinal logjam, there seems to be any number of fruitful lines of inquiry open where law & religion intersects with private law.

For those of you able to make it, please join is this February for the conference.  It should be quite an event!

Impact of Hosanna-Tabor?

A friend sent me this link about a Fair Labor Standards Act case recently filed against the National Council of Synagogue Youth (NCSY).  I haven't seen the complaint, but the news blurb says the plaintiff was a youth group advisor and her responsibilities included "teaching classes, meeting with students and co-workers, cooking for holiday meals and running programs, . . . and she worked around the clock while chaperoning [weekend religious retreats] and trips." 

When I saw the story, it struck me that the claims would pretty clearly run up against the "ministerial exception."   On its webpage, NCSY describes itself as "the premier organization dedicated to connect, inspire and empower Jewish teens and encourage passionate Judaism through Torah and Tradition."   The plaintiff appears to have been a youth advisor for events aimed at the religious "inspiration" of teens (religious teaching, coordinating religious events and holidays etc.).  So it seemed to me that pre-Hosanna-Tabor precedent (see, e.g., Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008); Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299 (4th Cir. 2004)) would likely counsel dismissal of the case. 

And so the following question struck me.  Has there been a visible uptick in complaints with claims implicating the ministerial exception with an eye towards that Supreme Court's decision in Hossana-Tabor?  I might have thought parties would wait to see the Supreme Court's decision, but maybe the uncertainty itself is enough to trigger a wave of new litigation.

Online Symposium: Shapiro and Hathaway on Outcasting

Opinio Juris is coducting an online symposium addressing Oona Hathaway and Scott Shapiro's recent article in the Yale Law Journal titled Outcasting.  Both the article and the symposium are great contributions to recent discussions on non-state governance (one of my other favorites is the Utah Law Review's 2010 symposium on non-state governance).  I've contributed my own thoughts in a post to the online symposium here.

Stem Cells, IVF, and Abortion: Is There a Right and Left Position?

This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.

Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard.  What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.

First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy.  As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.

Second, as to the right....

Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation.  Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14^th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy).  For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.

None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite.  Still I hope that judges and academics are better poised to see the nuances here.

The Pope reads Paul Horwitz

At the recent interfaith gathering and conference in Assisi, Pope Benedict XVI said something that made me wonder if he's been reading Paul Horwitz ("The Agnostic Age") up at his place in Castel Gandolfo:

In addition to the two phenomena of religion and anti-religion, a further basic orientation is found in the growing world of agnosticism: people to whom the gift of faith has not been given, but who are nevertheless on the lookout for truth, searching for God. Such people do not simply assert: “There is no God.” They suffer from his absence and yet are inwardly making their way towards him, inasmuch as they seek truth and goodness. They are “pilgrims of truth, pilgrims of peace.” They ask questions of both sides. They take away from militant atheists the false certainty by which these claim to know that there is no God and they invite them to leave polemics aside and to become seekers who do not give up hope in the existence of truth and in the possibility and necessity of living by it. But they also challenge the followers of religions not to consider God as their own property, as if he belonged to them, in such a way that they feel vindicated in using force against others.

These people are seeking the truth, they are seeking the true God, whose image is frequently concealed in the religions because of the ways in which they are often practised. Their inability to find God is partly the responsibility of believers with a limited or even falsified image of God. So all their struggling and questioning is in part an appeal to believers to purify their faith, so that God, the true God, becomes accessible. Therefore I have consciously invited delegates of this third group to our meeting in Assisi, which does not simply bring together representatives of religious institutions. Rather it is a case of being together on a journey towards truth, a case of taking a decisive stand for human dignity and a case of common engagement for peace against every form of destructive force.

Prawfs get results!

Workplace "Segregation"?

Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy.  The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors.  In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance.  For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”

Some patrons  took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful.  One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."

As it turns out, the assumption that such conduct is inconsistent with the law is a mistake.  For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.

Where, as with the above scenario, there is a conflict between an employee’s religiously-mandated appearance and an employer’s interest in avoiding possible negative customer reactions to the religious employee’s identity, federal courts are allowing employers to resolve this conflict by placing the religious employee out of public view or by refusing to hire him or her altogether.  In legal terms, courts faced with Title VII claims are reasoning that placing an employee with religious attire in the back is an acceptable “reasonable accommodation” of the employee’s religion or that to hire such an employee may result in economic costs that amount to an “undue burden.”

My recent research argues that these courts have it wrong.  It seems to me that the text of Title VII forbids such employer action and that this conduct reinforces majoritarian norms and perpetuates harmful stereotypes as to who the public wants to interact with.  Reserving social spaces for the familiar or likeable religions is problematic.  Moreover, other contexts, particularly principles from the civil rights movement, also point to the discriminatory nature of this employer conduct. 

While this position may not be controversial, what may serve as a lightning rod is how the aforementioned employer conduct is being described.  In particular, if an employer places in the back an employee who looks different on account of his religious attire, or refuses to hire such an individual, can this be fairly termed "segregation"?  In other words, it seems, the employer is segregating an employer in the workplace (by placing him or her away from the public) and from the workplace (by refusing to hire him or her).   Title VII expressly prohibits "segregation" and language in the latest Workplace Freedom Restoration Act refers to this conduct as "segregation."  The term is charged, but the question is whether its use is accurate or prudent in this context.

Amicus Support Requested: Hosanna-Tabor

Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.  They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief.  Here's their description of the case and the issues, which I am happy to pass along:

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she will probably win.  After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.  

The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.  

 As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:

Leslie C. Griffin & Caroline Mala Corbin
lgriffin@uh.edu; ccorbin@law.miami.edu

Will Ireland compel Catholic priests to reveal what they hear in Confession?

The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession.  The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:

 . . . Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”

Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime. . . .

I doubt that Minister Fitzgerald believes, as a general matter, that "if there is a law in the land, it has to be followed by everybody", or would want to live in a community where this was true.  In any event, this might be a good occasion to take advantage (?) of the oppressive heat and watch the old Montgomery Clift film, I Confess.

Victory for Pastafarians Everywhere!

I'm not one of the law and religion folks, so I'll refrain from legal commentary.  But, I couldn't resist using the Prawfs platform to pass this gem along: Austrian Man Wins Right To Wear Pasta Strainer in License Photo.

As NPR reports:

In Austria one of the strangest fights for religious freedom has come to an end: Niko Alm, a self-described "Pastafarian," fought for three years for the right to wear a pasta strainer on his head in his driver's license photo.

His argument? Alm claimed he belonged to the Church of the Flying Spaghetti Monster and wearing the strainer was part of his religion.

 

Enjoy.

"God's Partisans": secularization, stability, and religious freedom

Here is a short piece, in The Chronicle, by my friend and colleague Dan Philpott (Pol. Sci., Notre Dame) and others, about the failure of the "secularization" thesis to explain what's happening in the world around us.

But if American foreign-policy makers want to promote democracy and stability, they must come to realize that secularism is a poor analytical tool. The great surprise of the past generation has been the resurgence of religion's influence. Despite a powerful array of secularizing regimes, ideologies, and social trends, religion has not only outlasted its most ferocious 20th-century rivals, but in many cases, it also appears poised to supplant them.

Among other things, the piece suggests that religious freedom is a "critical [factor] when assessing whether religion is more likely, on balance, to yield peace or terrorism, democracy or authoritarianism, reconciliation or civil war."

The piece is based on the authors' excellent new book, God's Century.  Well worth a read, I think.

Some Thoughts in Defense of the Ministerial Exception

So Rick has gotten us started on the ministerial exception.  Caroline Corbin offered some opening thoughts here, and Marci Hamilton has a nice column here.

The short of it is that the federal courts of appeals have all recognized a “ministerial exception,” which exempts religious organizations from the anti-discrimination laws when it comes to their “ministers” (however defined).  The Supreme Court has never had a ministerial exception case.  Until last week that is, when it granted certiorari in EEOC v. Hosanna-Tabor.  The case involves the question of whether the ministerial exception really exists and, if so, what it covers.

People understand the ministerial exception pretty well when it’s about following religious doctrine.  Even if they disagree, people get the reasons why we would want to exempt the Catholic Church’s priesthood from the sex-discrimination laws.  But people have a harder time understanding why we would have a ministerial exception going beyond religious doctrine—they don’t see, for example, why we would ever exempt the United Methodist Church (which officially ordains women) from sex discrimination claims by their ministers.

It’s a good question. 

I’ve been working recently on a paper about the ministerial exception.  And I’ve been trying to explain this particular point recently in conversation both to some friends and my parents (who have mostly rejected what I’m about to say).  So it might be garbage.  I’ll leave that to you.  But below are three reasons why courts might want to adopt this sort of broad ministerial exception.  So if the Supreme Court ends up going this way, here are three reasons not to freak out.

1.  The Remedial Problem.  Reinstatement is the preferred remedy under our anti-discrimination laws.  In the context of ministers, this means forcing a minister on a church, against its will and over its objections.  Choosing a leader is obviously an essential component of religious life:  We call them “Christians” because they follow Christ; we call them “Buddhists” because they follow Buddha.  Forcing religious leaders on people is thus a classic free exercise problem.  But it’s also a classic establishment problem; one key part of the established church was that the state chose the ministers (consider, for example, why Henry VIII came to create the Anglican Church).  Some have suggested just giving damages rather than reinstatement.  But this still functions as government control over the church’s clergy, just in a different way: Appoint this minister or pay a fine.  (And surely a tax on religious exercise should be treated like an outright prohibition.)  The essence of the Establishment Clause was that people should not have to pay for a minister that is not their minister.  But that is what the damage remedy here essentially does.

There’s also a macroscopic remedial problem here.  The Protestant and Jewish denominations who officially ordain women have massive gender imbalances.  There’s real potential here for large-scale, industrial-strength class actions.  Eliminate the ministerial exception (or reduce it to being about religious doctrine), and we’ll have federal courts restructuring the core of many religious denominations: changing seminary and rabbinical school admission, the ordination process, and the call procedure (i.e., the way congregations select individual ministers).  There’s also a delicate point here about affirmative action.  Some churches have affirmative action programs for women.  I have no idea if they comply with the United Steelworkers v. Weber framework; some at least don’t seem to do so.

2.  The Inquiry Problem.  When a minister claims to have been fired because of some illicit reason, a church will usually respond by saying what defendants typically say in employment cases—there was something wrong with the minister’s job performance.  In the context of religious employment, though, that translates into the church saying she was a bad minister—maybe she was bad in the pulpit, maybe people did not like her bible studies, maybe she was not good at counseling parishioners, whatever.  McDonnell Douglas works by having the jury scrutinize the validity of those claims.  The jury essentially asks itself—well, was she a bad minister or not?  But that can be a difficult question for juries to answer; it requires the jury to pass on quintessentially religious questions.

3.  The Control Problem.  Part of the ministerial exception is simply the idea that churches should have some sort of basic right to run their own affairs.  Many free exercise cases have been cases of conscience objection.  The government demands you do one thing; your religion demands that you do another.  But religion isn’t just about the ability to obey commands.  Probably no one thinks that God requires them to sing in the church choir or attend church on Sunday rather than Wednesday.  But surely it would burden religious exercise if the government started forbidding church choirs or Sunday worship.  Free exercise isn’t just a right of conscientious objection; it’s a right to practice one’s religion free of intrusive governmental regulation.

If you start from this perspective, you will see a lot of reasons why churches might legitimately object to employment discrimination laws, even when they agree with the principles standing behind those laws.  Churches might want to avoid government regulation on principle; they might fear that some regulation now will mean more regulation later.  They might agree with the law but fear the enforcement apparatus (depositions, civil trials, etc.) or fear that secular bodies will not enforce the laws fairly—an important Ninth Circuit case involved a female minister suing in federal court for sexual harassment after a church court consisting of 3 women and 2 men dismissed her claims as unsubstantiated. 

So these are some basic reasons underlying a strong sort of ministerial exception.  Frankly, I’m still figuring out what I think, but those are some arguments I would make in support of it.  There’s a wide gap out there between the two sides; I’m hoping to lessen some of that with this post.

Sixth Annual "Conference on Christian Legal Thought" (at AALS)

Details after the jump. The gathering includes our own Paul Horwitz.

 

The Sixth Annual Conference on Christian Legal Thought   Books on Christianity and the Law   Saturday, January 8, 2011  10:30 AM to 6:15 PM  Hotel Monaco • 501 Geary Street • San Francisco, CA       CONFERENCE SCHEDULE   Registration  10:30 am Welcome 10:45 am – 11:00 am   First Panel 11:00 am – 12:15 am   Robert Vischer, University of St. Thomas School of Law Conscience and the Common Good Michael Scaperlanda, University of Oklahoma College of law To Bind Up the Nation’s Wounds (in progress) Patrick Brennan, Villanova University School of Law William Brewbaker, University of Alabama School of Law Christian Legal Thought: Materials and Cases Lunch 12:15 pm – 1:30 pm   Second Panel 1:30 pm - 3:00 pm Roger Alford, Pepperdine University School of Law Robert Cochran, Pepperdine University School of Law Joel Nichols, University of St. Thomas School of Law Randy Beck, University of Georgia School of Law Barbara Armacost, University of Virginia School of Law The Bible and the Civil Law (in progress) Coffee Break  3:00 pm – 3:15 pm   Third Panel 3:15 pm – 4:45 pm Margaret Brinig, Notre Dame Law School Family, Law, and Community: Supporting the Covenant John J. Coughlin, O.F.M., Notre Dame Law School Canon Law: A Comparative Study with Anglo-American Legal Theory   Paul Horwitz, University of Alabama School of Law First Amendment Institutions Prayer  4:45 pm – 5:15 pm   Cocktail Reception 5:15 pm – 6:15 pm The cost of the conference is $80 per person. To register, please download PDF at www.lumenchristi.org and fax to 773-955-5233. The registration deadline is Monday, January 3. For more information, contact 773-955-5887 or info@lumenchristi.org.
To make a gift in support of the Lumen Christi Institute, click here

 

 

 

"Religious" Contracts

As part of my recent thinking about the "new multiculturalism," I've been giving some thought to a category of contracts I'd call "religious" contracts (here's an abstract for the project).  What I mean by this category is contracts where parties enter some sort of financial arrangement, which also entails or incorporates some religious term or practice into the agreement. 

I think most people, when considering this category, typically raise examples related to divorce proceedings (e.g. the Jewish practice of executing a divorce through a get) and some of the challenges courts have faced when addressing agreements to execute a religious divorce.  But I've been wondering more about commercial agreements, which are also interwoven with religious practices.  Some prominent examples include the enforcement of mahr agreements (entered into within the context of Islamic marriages) and heter iska agreements (entered into to avoid Jewish law's anti-usury laws).  I'm curious if there are any other prominent examples of religious contracts that come to mind? 

I've been collecting examples to see how courts interpret such agreements as instances of the challenges courts faced when trying to regulate and enforce religious commercial conduct.  My own sense, which I sketch after the jump, is that courts have frequently adopted one of two adjudicatory tactics when faced with such conduct.   

In some instances, courts – fearful of the Establishment Clause – reflexively refuse to adjudicate cases implicating the enforceability of religious commercial conduct.  In so doing, courts often exhibit a hyper-sensitivity to entanglement concerns, without truly considering whether or not the religious overtones of the case actually require dismissal on Establishment Clause grounds.  Such a risk-averse approach to constitutionality can leave aggrieved parties without a venue to seek redress of legal wrongs.

Alternatively, some courts embrace adjudication of disputes implicating religious commercial conduct by pushing the religious undercurrents of the case to the margins and focusing instead on the familiar secular features of the case.  By so doing, courts can enforce religious agreements and resolve religious disputes under the umbrella of the neutral-principles doctrine, finding increased constitutional comfort in adjudicating cases impacting religious conduct when they can take religion out of the equation.

As courts face more and more cases of religious commercial conduct, my own view is that they'll have to start developing more of a middle-of-the-road approach.  Without appreciating the religious beliefs and practices intertwined with religious commercial conduct, courts will be hard pressed to determine whether or not entanglement concerns truly preclude a court from adjudicating a particular claim.  Moreover, to enforce an agreement by focusing only on the secular features of a case likely can distort the very terms of the agreement.  Instead, I think courts would be better served in educating themselves as to the implicated religious issues - allowing the parties to present evidence to explain the religious aspects of the agreement - in order to accurately determine what a particular contract entails and where commercial conduct ends and religious conduct begins. 

CAIR Challenges Constitutionality of Sharia Ban

For those following the story of Oklahoma's vote last week to ban state courts from "considering" sharia law, these developments are not particularly surprising.  CAIR (Council on American-Islamic Relations) announced the filing of a lawsuit seeking a temporary restraining order and a preliminary injunction against implementation of the sharia law ban passed in Oklahoma (see previous post for more info).  Here's the brief (and a local article).   

It's hard for me to imagine that the state constitutional amendment does not violate both the Establishment and Free Exercise Clauses.  First, it would appear to violate the Establishment Clause's own anti-discrimination principle (requiring neutrality between religion and religion, and between religion and nonreligion).   Plus the amendment doesn't appear to be facially neutral and generally applicable - and I don't quite see an argument supporting the claim that the amendment is narrowly tailored (let's leave aside the compelling government interest part of the analysis). 

But what about the imminent and irreparable harm prong of the TRO/PI analysis?  I suspect both sides may take some ironic positions on the topic.

Critics of the amendment have emphasized in recent weeks that there simply haven't been any cases of sharia law in Oklahoma courts.  While the current lawsuit seeks a TRO/PI largely on the grounds of immediate stigmatic harms, I wonder how much of a difficulty this might pose in claiming imminent/irreperable harm. 

On the flipside, advocates of the amendment have, in the weeks leading up to the referendum, argued that there's an immediate need for the amendment - presumably to thwart an impending threat.  If there's a claim of immediate need, it would sure seem like there's an implicit claim of immediate opportunities for application.  Any thoughts? 

 

Kagan, the Court, and Religious Liberty

Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases.  A bit:

 . . . What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty?

As she told the Judiciary Committee, the First Amendment ensures that religion "never functions as a way to put people, because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of American citizenship." "You are a part of this country," she insisted, "no matter what your religion is." She was right. Our Constitution protects religious liberty and welcomes religion in public life, but the criteria for membership in our political community are secular. Clearly, courts have a role to play in policing these criteria and making sure that "rights of American citizenship" are never made to depend on religious professions or practices.

But what is that role, and how should it be exercised? The ability of unelected judges to identify those government actions that actually "establish" religion is limited, and so is their authority to second-guess others' policy decisions. It is not just the responsibility of judges, but also of legislators, public officials and voters, to be good stewards of our "blessings of liberty" and to guard against political exclusions on religious grounds. . .. 

I'd welcome your thoughts.

History of U.S. Executive Policy Since WWII

My first post focused on the most recent Nazi-looted art appeal in the United States, which was filed in the United States Court of Appeals for the Second Circuit.  To put this appeal into context, an analysis of federal court cases adjudicating Nazi-looted art claims since 2004 demonstrates a de facto presumption against the legitimacy of these claims.  I will lay out a summary of the other cases in question in my next (third) post. 

This post will focus on the history of U.S. executive policy.  Dismissing such claims without reference to the complex historical factors delaying assertion of owners’ claims violates foreign policy goals pursued by the United States and the Allies during and immediately after World War II, and in recent diplomatic breakthroughs in 1998, 2000, and 2009.  This executive policy is the subject of this post.  Historical context dating back to 1933 will be provided in my fourth post. 

In the normal course of judicial administration touching on foreign policy, federal judges typically defer to determinations of policy matters by the executive branch.  For example, in 1949 this Court ruled inadmissible the statements of a Jewish victim of Nazi persecution describing his brutal imprisonment by the Nazis that led him to “transfer” major assets under duress, on the ground that to do so would denigrate a foreign country.  Bernstein v. N. V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d Cir. 1949).  In 1952, however, as will be familiar to any international law professor, Jack B. Tate, Acting Legal Advisor in the Department of State, clarified:

 

[The U.S.] Government’s opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls . . . [and] the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.  

26 Dept. St. Bull. 984-85 (1952) (the “Tate letter”).  Once the Second Court was fully informed of the government’s views of coerced “transactions” during the Nazi era in Germany, it promptly reversed its previous ruling in the same case.   Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954).

 

U.S. diplomats led efforts to warn other countries against looting in the landmark London Declaration of January 5, 1943, 8 Dept. St. Bull. 21 (1952), which “declare[d] invalid any [coerced] transfers of, or dealings with, property . . . whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.”  Immediately after the war, the Nuremberg Tribunal evaluated detailed evidence of coerced sales, and the plunder of art was declared a war crime and is so recognized today.  At Nuremberg, it was perfectly clear to the fact finders who had done what and to whom.  For example, Alfred Rosenberg, head of infamous Einsatzstab Reichsleiter Rosenberg (“ERR”) art looting unit, was convicted and sentenced to death by hanging. 

Shortly thereafter in Bonn and Vienna it was equally clear that, in order to rejoin the human family, Germany and Austria had to repudiate all spurious “transactions” of the entire Nazi era, including art “deals” that were really seizures.  E.g., Restitution of Identifiable Property; Law No. 59, 12 Fed. Reg. 7983 (Nov. 29, 1947) (Military Government Law 59).  Thus, the model chosen was a restitution model for individual claims, and these claims were not subsumed in reparations paid after the war, which were limited as we made room for the Marshall Plan.

Current foreign policy requires deference like this Court gave to the Tate letter.  Diplomats from the State Department, particularly Ambassador Stuart Eizenstat, played a leading role in securing public commitment by the forty-four nations that adopted the Washington Conference Principles on Nazi-Confiscated Art and the Terezín Declaration, which emerged from the international conference hosted by the Czech Republic in June 2009.  These declarations call for effective, fact-based resolution of Nazi-looted art claims.  Principle eleven of the Washington Principles encourages nations “to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”  The Terezín Declaration states in its principles under the heading “Nazi-Confiscated and Looted Art”:

3. . . . [W]e urge all stakeholders to ensure that their legal systems or alternative processes . . . facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.  (Emphasis added)

 

To give credit when due, this development in foreign policy was sparked in no small measure by Guidelines issued by the Association of American Museum Directors (“AAMD”) in June 1998.  Thus, it is quite shocking that U.S. museums are asserting statute of limitations and laches defenses, often as plaintiffs, and distorting the historical record and law in the process.  

  My next post will lay out the progression of cases since the 2004 Altmann victory in the United States Supreme Court and subsequent restitution of the Gustav Klimt Adele Bloch-Buaer II, a portrait of a relative of the claimant formerly known as Austria’s Mona Lisa.  This progression shows that federal courts do not seem to be giving Nazi-looted art cases the fair assessment they deserve. 

"The End of Endorsement"?

Steve Smith asks, over at the new Law, Religion, Ethics blog, whether we are seeing, in the Ninth Circuit's decisions rejecting First Amendment challenges to the Pledge and to the National Motto, the "end" of the Court's "endorsement test."  (I note, by the way, that among the virtues of Law, Religion, Ethics is that it has resulted in more things to read by Prof. Smith.)  He writes:

I wonder whether this decision is a manifestation of the end of the “no endorsement” doctrine– a doctrine that originated in the mid-80s and that, while attractive on one level, is just so manifestly incongruent with so much in the American political tradition (including much that is revered, such as Jefferson’s Virginia Bill for Religious Freedom, the Declaration of Independence, Lincoln’s magnificent Second Inaugural Address, and expressions of probably every President from Washington to Obama) that it just couldn’t be consistently adhered to.  Pretending to adhere to it often has led merely to rationalizations that are palpably implausible (such as Justice O’Connor’s explanation at an earlier point in this case of how “under God” really doesn’t send a message endorsing religion).  Maybe it’s time for courts to acknowledge that the “no endorsement” experiment, though well intentioned, just hasn’t worked out, and it should be abandoned.  We can hope– I can, anyway– that yesterday’s decision is a step in that direction.

My own view, for what it's worth, is that the reason why it is (or, at least, should be) constitutionally permissible to include the words "under God" in the Pledge is not because the Pledge (with these words included) does not involve any "religious" affirmations or claims, and is not because the government may be deemed to stand at a sufficiently ironic or neutral distance from such affirmations or claims, but is because whatever religious affirmations or claims the Pledge (with these words included) involves are ones that our Constitution permits the government -- that is, the political community -- to "endorse."

"Laica" in Mexico

A worth-reading piece by the Becket Fund's Luke Goodrich in the Wall Street Journal:

. . . Last week, Mexico's lower house of Congress began the process of amending the Mexican Constitution to formally declare the country to be "laica"—meaning "lay" or "secular." Supporters say the amendment merely codifies Mexico's commitment to the separation of church and state. But the term "laica," like the term "separation of church and state," means different things to different people. In fact, Mexico has been fighting over the meaning of church–state separation for over a century, with pro-church factions seeking greater political control for the Catholic Church, anti-clerical factions seeking to suppress the church, and few factions willing to agree on government neutrality towards religion. The key question is: What version of the separation of church and state will this amendment embody?

Unfortunately, the context surrounding the amendment suggests that it might be a step backwards for religious liberty and true separation of church and state. . . .

He concludes:  

"Mexico should take care when defining its version of separation of church and state. Separation is good when it means the government is neutral toward religion—neither giving legal privileges to any one religion, nor interfering with the outward expression of religious belief. Separation is a problem when it means the government is hostile to religion—treating it like the "tobacco of the masses" and attempting to eradicate it from the public square. Let's hope that "laica" means the former, not the latter.

Laycock on faith-based hiring by publicly funded religious organizations

My friend Tom Berg posted this over at the Mirror of Justice blog:

An important question for both religious-freedom law and civil society is whether religious organizations can receive funding to provide social services without having to compromise their religious character in doing so.  The Bush Justice Department issued an opinion concluding that organizations receiving government funding could invoke the Religious Freedom Restoration Act (RFRA) to challenge funding conditions that conflicted with their religious tenets or identity.  Now the Obama DOJ has proposed reversing that interpretation. In this memorandum letter, religious-liberty expert Doug Laycock, in his typical incisive way, explains why RFRA should be held to protect the organization.

As (I think) I have said before, I think it is a mistake to conclude that, because the government may not, and should not, take religion into account when staffing its social-welfare programs, religious organizations that receive public funds to assist in their own ("secular") social-welfare work should lose their right to take religion into account when staffing their own programs.  It is both a violation of the no-establishment rule (I assume) and inconsistent with the kind of equal-treatment rules we should want to constrain the government for government agencies to take religion into account when hiring and firing; but taking religion into account in this way is not something that is in-and-of-itself bad -- it depends -- and it is not bad (it seems to me) or worrisome when religious organizations do it.  Put more simply, the "public funds should not be used to pay for discrimination" claim seems to not quite hit the mark in the context.  In any event, see what Doug has to say . . . 

"Freedom for Faith, Freedom for All"

Here is my First Things review of David Novak's recent book, In Defense of Religious Liberty.  A bit:

[T]o mount a serious defense of religious liberty, one must understand what that liberty is and why it is worth protecting. But reaching such an understanding has proved, for more than a few contemporary scholars, harder than it sounds. One senses in current academic conversations a desire, perhaps just a vestigial one, to protect religious liberty in and through law, but also a reluctance or inability to explain why we should. One of Novak’s important and timely tasks is to do just that. . . .

Communion and Consistency?

I post the following in the interest of stimulating thoughtful conversation on religion and politics, one of our specialties here. It turns out the Catholic Church has been urging Rep. Kennedy to avoid participating in communion based on his support for abortion rights. The story has been percolating intensely the last couple weeks but stems from a letter sent to Kennedy from a bishop based in RI back in 2007.

 In response to this article, someone writes: 

Now I'm not a Catholic, but this is despicable. The Church has never told supporters of the death penalty or the criminal wars not to receive communion. It has never denied communion to anyone who covered up the sexual abuse scandal. It has never linked communion to its own teachings on rich people and camels and eyes of needles. Hell, it has even gone out of its way to praise Pius XII and has a current pope who was a member of Hitler Youth. What more is there to say?I suspect there is more to say than this provocative (incendiary?) comment, but I don't think I'm in a position informed enough to respond and would like to hear more about how these choices are made about which issues place politicians beyond communion, and which don't. For what it's worth, I don't doubt that other religions and religious organizations are regularly guilty of selective emphasis (aka hypocrisy), so blogging about this topic shouldn't suggest anything about my own inchoate views or that I think Catholics are occupying the field here. So, any thoughts in defense of the Bishop's choice or is this rank wrongness? Do people think (strictly from a normative/moral perspective, not legal) that isolating one group of persons is ok b/c the Church should be able to "regulate one step at a time"?

Catholic League v. San Francisco

When the Thomas More Law Center sued the City of San Francisco for condemning a Catholic Church policy on adoption, I opined that "the case seems pretty unlikely to get off the ground."  I was right and wrong, mostly wrong.  The plaintiffs claim was dismissed at the 12(b)(6) stage and that dismissal was affirmed by a unanimous panel of the Ninth Circuit.  But the Ninth Circuit has now granted rehearing en banc, suggesting that enough judges see enough of a problem here that they want a large minority of the circuit to get involved.

Why?  I don't fully understand yet, but I will read the panel opinion more carefully and see if I can figure out what's going on.

What does it mean to have “evidence” for a “religious belief” about “the world”?

The question and scare quotes are inspired by Brian Leiter’s effort to define “religious beliefs” with the following (partial) stipulation: “Religious beliefs do not answer ultimately (or at the limit) to evidence and reasons, as evidence and reasons are understood in other domains concerned with knowledge of the world. Religious beliefs, in virtue of being based on ‘faith,’ are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common-sense and in science” (page 18).

I found this definition perplexing, because it assumes that “we employ… ordinary standards of evidence and rational justification” applicable to all “other domains concerned with knowledge of the world.” Such an assumption naturally gives rise to the following question: To accept Brian’s definition, must I reject Nelson Goodman’s claim that there is no single set of standards of justification applicable to different systems of describing the world? Goodman argues in Ways of Worldmaking that there are many different and mutually inconsistent “ways of world-making,” each relative to a particular domain. The ways of world-making for a literary critic, novelist, physicist, and painter obey very different criteria of rational acceptability, even though each purports to describe “the world.” So it is a waste of time to come up with a single theory of rational acceptability by which to judge their various statements about the world. This is not to say that we cannot say that such statements are true or false: Vulgar relativism is still just as self-defeating as it ever was. It is just that we do not have a single, coherent understanding of evidence and reasons that applies across different domains of the world – music, literature, physics, psychology, theology, etc. As Hilary Putnam puts it, the odds are really low that “we can find powerful universal generalizations obeyed by all instances of rationally justified belief”(“Two Conceptions of Rationality,” in Reason, Truth, and History at 104).

I would not invite here an argument between fans and detractors of Goodman. Instead, I offer a simple point of information: To buy into Leiter’s definition of “religious belief,” do I need to reject Goodman’s theory of pluralistic justification?

This question invites a further one. Leiter relies a lot on Simon Blackburn’s recent argument that religious beliefs about the world are not entitled to respect – at least, not if they are (in Blackburn's ungainly neologism) “onto-theological.” Should I translate this statement to mean: “Onto-theological beliefs are not entitled to respect – that is, if one adheres to a particularly crude form of scientism that has been rejected by folks like Nelson Goodman, Hilary Putnam, and William James (See James' Hibbert lectures, A Pluralistic Universe)?” Because, if I receive from Blackburn the disrespect that he reserves for people like Goodman, Putnam, and James, because I am deemed to be just as irrational, unscientific, immune to evidence and argument, etc, as they are, then I think that I can live with that.

Toleration or Respect?

Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty:  Toleration or Respect?"  Here is the abstract:

Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

Although I think that Prof. Leiter's conclusion that "religion is not the kind of belief system that could warrant [thick respect]" is misguided (in part because his understanding of "religion" is not mine), I find this paper -- like his earlier piece, "Why Tolerate Religion?" -- kind of refreshing, bracing even.  Like Prof. Leiter, I come away from works like Prof. Nussbaum's new book on religious liberty not sure that any case has been (or, given the working premises, could be) made for religious liberty.  Perhaps, as Prof. Steve Smith has been saying for a while, the only solid arguments for religious freedom (that is, for something more than a cost-benefit-based "toleration" of religion) are themselves "religious" or, at least, depend on anthropological and other foundations that we -- even if we are willing to invoke them from time to time -- no longer really accept?

Just a little something to think about over lunch . . .

Greenawalt, Hamilton on the Rule of Law and Religious Exemptions

I learn through Paul H. that there is an interesting exchange between Kent Greenawalt and Marci Hamilton in the latest issue of the Cardozo Law Review.  Greenawalt responds to some of Hamilton's arguments in her 2005 book, God vs. The Gavel: Religion and the Rule of Law, and Hamilton replies to Greenawalt's criticisms.  The exchange is a lovely example of how two scholars writing in the same field, about the same issue, and ostensibly about each others' views on the same issue, aren't really speaking the same language.  One is from Venus and one from Mars.  Below the fold, details of the exchange and a bit of discussion.

Greenawalt wants to talk about whether and how religious exemptions might comport with various ideas of the rule of law.  He begins, as anyone must when discussing the idea of the rule of law, with the observation that the concept itself and the values that it embodies are not so very easy to pin down. Greenawalt proceeds with a careful discussion of different ideas associated with the rule of law, from the formalist core to the more contestable notion that the law ought to be exceptionless, to, finally, the even more contestable idea that a law which does not comport with the "common good" -- or some view of sound morality -- violates the rule of law.  This last conception of the rule of law Greenawalt, following Ronald Cass, would not consider part of the rule of law because that sort of formulation would dilute what is distinctive about the core.

Unless one concludes that religious exemptions from generally applicable laws are never justified (a position that Greenawalt obviously rejects -- does anyone accept it?), the real question -- where the rubber meets the road -- is when they will be justified, what are the circumstances that justify an exemption.  Greenawalt reads Hamilton charitably as arguing that exemptions are only justified when they cause at most "de minimis" "harm to others" (the charity is indeed ample, since Hamilton states at least once that they ought never be granted, period).  For himself, Greenawalt believes that anytime the rule of law is in fact a standard of law -- granting a considerable discretionary range -- the core, formalist idea of the rule of law is destabilized, because individual decisionmakers are left to make delicate judgments about how specific facts match up against the vague language of the standard.  That is exactly the case with the Sherbert free exercise standard (now defunct, but partially resurrected by the Religious Freedom Restoration Act and its state analogues), which requires judges to determine whether a law imposes a "substantial burden" on a person's free exercise and whether the burden serves a "compelling state interest" that is "narrowly tailored." 

In fact, the legal system, Greenawalt writes, is "shot through with elements that do not conform with a simple rule of law model" -- and for what it's worth, I agree entirely (though I have more than a strong suspicion that Greenawalt does not share my own skepticisms).  The "standard of law" is, then, on Greenawalt's view, a pervasive and indelible feature of the American legal system that is in perpetual tension with the rule of law.  And the key to negotiating the tension is, as in all of Greenawalt's work, nuance and delicacy in the face of particular facts that incline us more toward the hard-and-fast rule of law, or instead toward the discretionary standard of law.  Privileges and exemptions that parents enjoy in respect of their children, for example, might be based on either a pre-political or a rights-based understanding, but there is little doubt that while a harm-oriented common good gauge of value must somehow figure into the picture, it can hardly be the whole picture.

It is this sense of nuance -- of the importance of motivations in assessing whether two cases are, in fact, alike -- that informs Greenawalt's discussion of religious exemptions.  These distinctions are illuminated in his discussion of what to do with parents who believe that faith healing will cure their extremely sick children -- children who need medical care and who die because their parents failed to provide it (this is an area of heated interest for Hamilton).  Does it matter -- ought it matter -- to the criminal law and to the rule of law that these parents did not intend the death of their children -- indeed, that they actually intended to save them?  As a general matter, of course, such distinctions are relevant indeed in criminal law; they mark the distinction between purposeful and negligent homicide.  But ought they be?  Are they an example of treating like cases unalike?  Here Greenawalt's discussion is rich and ambivalent: "If the crucial considerations come down to effective deterrence and competing views about 'just' punishment, we should not understand a well considered decision to exempt those parents from all or some forms of criminal liability as an offense to the rule of law (whether or not we actually agree with that decision)."  The tension between the rule of law and the standard of law -- and the rival considerations of policy and principle -- cannot lead to a single, superimposed, and good-for-all-purposes conclusion in such cases.         

As for Hamilton's response, she obviously wants to talk about different things.  She talks about the superiority of legislators to judges in arriving at decisions about exemptions and the dangerousness of religion.  These are themes that she has sounded repeatedly.  She makes one profoundly, even gratuitously, dubious claims about her own work ("Harm arising from religious entities was unacknowledged, and even taboo, before the publication of God vs. the Gavel.  There was a moral imperative in the culture that forbade negative talk about religion."  Indeed?  Can it be that 2005 was the year the dam finally burst?  First God vs. the Gavel and then, just the following year and hot on its heels, The DaVinci Code.). 

She does not want to talk about the rule of law and the various meanings it might have, and the various ways in which those meanings might be consistent (or not) with exemptions from generally applicable laws.  She wants to talk about "substantive harm" and that people just don't see how bad religion can be.  And since religious institutions cause harm -- and Hamilton is most able at documenting the evil done in the name of religion -- they ought not to receive any exemptions or, at least, the legislature ought to put their claims of exemption under the "common good" microscope before granting any exemptions. This is no surprise, I suppose.  Hamilton's strength has always been the passion that she brings to her research and her deep knowledge of the abuses perpetrated in the name of religion. 

Hamilton's comments bring back to mind some of my own criticisms of Hamilton's book in this review essay (non-novel, I know, I know) from a few years back. One of these was that Hamilton's conception of the common good is not very precisely specified.  Another is that for someone who has so persuasively demonstrated the failures of the legislature to, as she puts it, "shoulder the[ir] responsibilit[ies]," it is confounding that she should be prepared to vest such unfettered trust in the wisdom of the legislature to make these assessments.

At all events, the exchange is worth reading, if only to see that the law and religion field is populated by different sorts of scholars making very different sorts of claims, drawing on their own strengths.  Just like any other field, it seems.

Colorado death-penalty vote

The Colorado House of Representatives has voted -- narrowly -- to repeal the death penalty.  According to this story, the person who cast the last and deciding vote, Rep. Ed Vigil, did so on the basis of "moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado."  If this is true -- that is, if Rep. Vigil voted as he did because he was moved by such appeals -- then should we have any concerns (even if we welcome, as I do, the legislative repeal of capital punishment) about his vote?  (No, we should not.  But . . . why not?).

The "Court"

The Big "C"

Why do law professors use lowercase “court” for the most part, but capitalize the word when referring to the U.S. Supreme Court? It makes American legal scholarship seem sort of parochial, and, correspondingly, a little silly, don’t you think? But more than that, I worry that we’ll end up giving the “Court” a big head. Capitalizationally speaking, it’s just getting a little too close to Him for my comfort. Next thing you know the U.S. Supreme Court will get on such a high horse they’ll think they can select the president.

Daley's confusion

In this op-ed, "An uneasy mix of religion and politics," Bill Daley attacks Chicago's Catholic archbishop, Cardinal George, for criticizing the University of Notre Dame's decision to honor President Obama with the commencement address and a ceremonial degree.  (I realize that the controversy surrounding this decision might seem exotic, or even bizarre, to those not immersed in the "what does it mean to be a Catholic university?" conversation, but bear with me.)  Daley's op-ed reflects, I think, a deep, and actually dangerous, confusion about church-state separation.

According to Daley, the Archbishop's critique is an unsettling example of "mixing" religion and politics.  He writes:

[N]o matter how strongly we cherish our faith and values, we have to remember that we are not alone in this world.

That idea is what distinguished the fledgling United States from the many countries with state religions. It still distinguishes us from much of the world. No matter how certain we are that our church is the one true path to salvation, we can never cross the line and believe that it is our God-given right and duty to force our beliefs on others. Otherwise, we are no different than the forces of religious fanaticism and terror that we are fighting today.

The suggestion that, by urging a Catholic university to think more clearly about the implications of that character for that university's own decisions and practices, a Catholic bishop is pushing us toward a "state religion," or "forc[ing] . . . beliefs on others" is seriously misguided.  In fact -- and this seems true whether or not one supports President Obama's policies, agrees with him, or thinks Notre Dame should honor him -- the more serious threat to church-state separation, properly understood, is the suggestion, from one with Mr. Daley's connections to political power, that Catholic bishops act wrongly -- act un-American -- when they tell Catholic universities how better to be Catholic.

Dolan on Summum

Prof. Mary Jean Dolan (John Marshall) sends in these thoughts, about the Summum case:

Maybe because I’ve been working on the Pleasant Grove case for a year now (and maybe also because my grade-school age children’s toys don’t make for charming metaphors!)(see Jay Wexler’s March 2^nd post), I’d like to add to the discussion about the case, and to hear what others think on a point I’ve been ruminating over.  As Chris Lund’s on-the-spot Feb. 25^th post pointed out, the Establishment Clause questions so prevalent in the press, and at oral argument, were glossed over to get that 9-0 judgment.  It may be true that for Ten Commandments monuments, Van Orden is the last word, at least for a case involving such similar facts.  (Justice Souter’s concurrence saying, yes, it’s government speech, all right, “an expression of a government’s position on the moral and religious issues raised by the subject of the monument,” seems fairly unlikely to go far, given that the “secular message” tactic previously carried the day.)   

    Avid readers of the decision may have noticed that none of the five opinions cite to Petitioner’s briefs.  While Justice Alito addressed Respondent’s arguments, he relied solely on several amicus briefs, including the IMLA brief.  Partly that’s because the amici provided useful examples of the huge (negative) impact a decision for Summum would have had on the country’s monuments, but there may be more to it than that. 

Petitioner’s counsel, Jay Sekulow, consistently argued that monuments are governed by the “speech selection” cases (Forbes, Finley), while Justice Alito’s decision built on the Johanns line (substantive government message, conveyed with private assistance).  Justice Alito seemed to agree with an argument emphasized in the IMLA brief, that when a city decides to display a donated monument, it is expressing at least a broad identity message.  Petitioner likely had an eye on the Establishment Clause and positioning for future cases.  (Shameless plug alert:  Emphasizing my differences with the ACLJ on the Establishment Clause, inappropriate in writing IMLA amicus brief, is one reason I took the unusual step of writing a before-the-decision law review article, in Catholic University Law Review.)

So, the Pleasant Grove decision does seem to saddle governments with their monuments’ messages.  (Nailing down those messages, though, still provides wiggle room.)  Any early thoughts on how this particular point will affect the play between the Free Speech Clause and the Establishment Clause in next cases, and other contexts?   I’d love to hear from others who’ve given this case extended thought.

Religious Liberty and Conscience at Villanova

Readers might be interested in attending Villanova Law School’s third annual Scarpa Conference on Law, Politics and Culture this Thursday, February 19, 2009, at the Connelly Center on Villanova’s main campus.

The theme of the conference is “Liberty of Conscience and Religious Equality,” and the all-star speakers include Martha Nussbaum from the University of Chicago, Patrick M. Brennan from Villanova, Jesse Choppr from Berkeley, . . . Kent Greenawalt from Columbia, John McGreevey from Notre Dame, Roderick Hills from New York University, Very Rev. Richard Schenk, OP from the Dominican School of Philosophy and Theology at the Graduate Theological Union at Berkeley, and Geoffrey Stone from the University of Chicago.

HT:  First Things

Continuing legal education credit is available for attorneys, and more information can be found here (PDF).

Equal Access with a Twist...

A district court in Minnesota recently decided an equal access case that has some important implications.  Child Evangelism Fellowship had sued the Elk River School District, having wanted to distribute its literature on school bulletin boards and at school open houses.  Elk River refused to let it; CEF claimed this violated the Free Speech Clause.  The Court's opinion grants CEF a preliminary injunction, but the way the opinion decides things suggests that a permanent injunction is certainly on the way.

The interesting thing about this case is the role of this federal statute, 20 U.S.C. § 7905, known as the Boy Scouts of America Equal Access Act.  Passed in 2002, Section B of the Act states that:

[No school or school district] that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in Title 36 of the United States Code (as a patriotic society) that wishes to conduct a meeting within that designated open forum or limited public forum, including denying such access or opportunity or discriminating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of America or of the youth group listed in Title 36 of the United States Code (as a patriotic society).

Now in part because of this statute, Elk River's policy was to permit distribution of three types of material -- (1) "materials directly relating to official and school-sponsored actvities," (2) "materials directly in support of school activities," and (3) "materials from [these patriotic organizations] after staff review."  Btw, these patriotic organizations are listed in 36 U.S.C. § 20101 et seq. -- they include groups like Future Farmers of America (§ 70901) and Little League Baseball (§ 201036).

Anyway, CEF's claim was straightforward: If you allow distribution of messages from these "patriotic" organizations, you have to allow our messages.  Whether an organization is listed as "patriotic" in Title 36 is hardly a viewpoint-neutral classification.  And apparently, Elk River made the ill-advised concession that there was a public forum here (see p. 6).  And so, under settled First Amendment law, CEF wins.

There are some important issues here.  There's always the aside that I don't know why school districts concede the public forum point.  Here the only outside organizations that Elk River permitted to send flyers are the patriotic ones that Congress singled out for special treatment.  Everyone else -- including political groups offering flyers with high-value political speech -- are banned.  (As another aside, note that if Elk River argues no public forum, Section 7905 suggests that it can exclude even the patriotic groups.)

Most importantly though -- and this is the heart of the post -- if the Free Speech Clause gives CEF rights co-extensive with the statutory rights of the aforementioned "patriotic" organizations, then one of the big unresolved issues in church/state law is now resolved.  Because the patriotic organizations don't just have the right to meet -- Section 7905 also gives them freedom to establish "membership or leadership criteria" and to have an "oath of allegiance to God."  That would mean CEF (and CLS and so on) would have the right to exclude gays and lesbians from joining or from leadership posts, anti-discrimination rules apparently notwithstanding.  CEF can claim that "patriotic" organizations have the right to meet without gays and lesbians, and that the Free Speech Clause prevents that right being given only to organizations the government defines as "patriotic."

Whither the culture wars?

A whole lot of folks must have been out of the office yesterday because I am quoted in a Foxnews.com article on political clashes between the Catholic Church and the Obama administration. Although I am not sure that it quite captures my remarks to say that "Catholic politicians have been excommunicated in recent years for not supporting positions consistent with the church's teachings," I did note what seems to me to be an increased insistence upon on at least certain Bishops on faithfulness to the Church's position on life issues (as opposed to postions generally) and a willingness to enforce that through denial of the Eucharist and cited, for context, New Orleans Archbishop Joseph Francis Rummel's excommunication of three segregationist politicians in 1962. 

Just how aggressive the Church should be in insisting that Catholic politicians follow Church teachings is a topic that has been debated for as long as I can remember (a period that has come to be distressingly long) and I am not sure that I can add anything to on this cold January morning. I am a confirmed opponent of privileged status for public reason and a staunch supporter of political moderation by the church.

But I do think that the Freedom of Choice Act presents the possibility for political total war. The key, it seems, is whether there will be 41 votes in the Senate to block it and how aggressively the administration and pro-choice movement pushes for it. Whatever the outcome, a concerted effort to pass FOCA will energize the pro-life movement in a way that may help GOP candidates in 2010.

At a larger level, potential controversies over abortion, assisted suicide and stem cell research and certain other biomedical developments can't be dismissed as "childish things" or "wedge" issues designed to take our eye off the economic ball. The Catholic Church supports (often wrongly, I think) much of what might be characterized as a "liberal"position one economic issues, yet insists on a view of the human person that is inconsistent with what seems to be the consensus view of political liberals. This difference will continue to be contentious because it matters.

Cross posted at Marquette University Law School Faculty Blog and Shark and Shepherd.