Category Archives: Commentary

Invocatin’ Satan

The 2014 Supreme Court case Town of Greece v. Galloway is being used to permit Satanists to give invocations at public events. As this article explains, the case stands broadly for the proposition that invocations at public events such as town council meetings must be open to all faiths within the community, and the municipality cannot discriminate among them.

This being America, one person founded a “First Pompano Beach Church of Satan” and petitioned a number of towns to be included in the invocation list. Some have done away with invocation entirely to avoid having the Satanists there. Some have put him on a (long) waiting list but at least one is permitting him to speak. A self-described “minion of Satan,” the article describes his project as:

“Part political commentary, part performance art, Stevens’ “Satan or Silence Project” has presented 11 South Florida municipalities with some stark choices: Either drop the invocation that opens city commission meetings, or allow him, a self-described ‘minion of Satan,’ to lead a prayer to the prince of darkness.”

As a threshold matter, this may not even pass muster under Galloway, which was concerned about religious communities that actually existed within a political boundary being excluded.  Here the lack of a congregation or physical presence in some of the towns targeted might be enough to justify an exclusion.  But as silly as it may seem, this controversy raises some interesting questions about the connections between religion and society. From the article, the “church” seems more of a stunt than an actual belief system, and seems designed to criticize the notion of public prayer at all (the “minion” notes his invocations might “include beer, nachos and a mariachi band.”) But the case law is somewhat consistent that the sincerity of beliefs cannot be questioned by a court, though the evidence here seems pretty clear. But let’s assume he is a sincere believer in the Tempter.

Should the invocation nevertheless be allowed? That depends on what we want to get out of such an invocation. Christian invocations of this type typically ask for strength and wisdom in public deliberation, and guidance for judgment to do what is in the common good. But not all invocations would be appropriate – for example, an explicit call for unbelievers to convert. As the deputy mayor of Boca Raton says in the article, such invocations set “the proper tone” for deliberations. A mariachi band and an invocation to a being typically associated with deception and cruelty, would seem to be inappropriate.

An invocation then, is not merely ceremonial or rhetorical window dressing. An invocation, therefore, does have a civic purpose and municipalities may have a basis for distinguishing among the kinds of invocations they seek.


RLUIPA and compelling government interests

Well this is good news. An Anglican church in Jacksonville Beach has received permission to build a new church, over two rejections from the local planning board. A court found that under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the community had the right to build their church.

Controversy over building churches occurs much more often than one would think, at least to me. Many communities do not want them, and provide for zoning plans to exclude them (and, it is true, many other types of non-residential buildings) from residential zones. Although there is a healthy debate about whether this kind of zoning makes sense as a matter of planning, RLUIPA is directed at the particular issue of preventing discrimination against religious buildings and treating them differently from other kinds of structures.

The Church of Our Savior purchased plots of land on which to build their church. Although the town planning department approved the application, the planning commission rejected it, citing concerns unspecified in the opinion about the traffic and the “character” of the neighborhood. A further refinement of the proposed plan, including turning part of the plot into a public park, failed to satisfy the commission. The town promptly changed its zoning code to try to neutralize the church’s claim it was being treated unequally.

The court wrote a thorough opinion addressing the RLUIPA claims. Simply denying a church a permit to build, or to require changes to a building plan, do not “substantially burden” a religious group’s rights under RLUIPA. Land is finite and, as is taught in law school, each parcel is unique. Market conditions, and not government action, are often the cause of a religious group not getting the property it wishes. Accordingly, the Court rejected most of the church’s claims of RLUIPA violation as a general principle.

However, the Court upheld a RLUIPA claim, as applied to the church, finding that the planning commission had treated it unequally. The commission had recently approved a very similar application for a school, and could not, to the Court’s satisfaction, articulate a “compelling government interest” that justified a full rejection of the Church’s plan. The commission asserted an interest in “preserving the character and safety of its residential neighborhoods through enforcement of its zoning regulations …. Even assuming that this constitutes a compelling government interest under RLUIPA, the Court finds that a blanket denial of the Church’s application was not narrowly tailored to further that interest.”

This seems like the right result.  Since the church location was near a large street and an amusement park, it is difficult to see how their parking spaces and 200-person church would affect the “character” of the neighborhood. What seems to have (rightly) bothered the court is the sudden change in the zoning code and its obvious unequal treatment of the church.  This kind of last-minute objection and inarticulate “character” assertions are exactly the kind of arguments RLUIPA holds up to scrutiny, but one can’t help but wonder how many times they prevail.

Religious Freedom in America

I have been reading this collection on “Religious Freedom in America,” edited by Allen Hertzke. The authors cover the subject from a number of perspectives, including Thomas Kidd and Vincent Philip Muñoz with perspectives on the Founding, and important contributions from the Sikh and Muslim traditions, which are not often heard in these debates.

There is also an empirical essay of particular interest for those trying to figure out the current state of religious freedom. America post-Smith has a welter of “mini-RFRAs” establishing balancing tests meant to offer more protection to religious exercise than a “rational basis” standard. The results are not encouraging. Professors Robert R. Martin and Roger Finke collected thousands of religious liberty cases and coded them according to various metrics. One metric was how often courts invoked a “compelling” government interest in considering a religious liberty claim. In an earlier post, I had noted the relative lack of detail in judicial opinions concerning what constitutes a “compelling” interest in federal law that, along with the least restrictive means to meet that interest, would overcome a substantial burden on religious freedom.   The authors provide some answers from their review of state court decisions. Their review indicated that states have articulated at least some compelling interests; these include “completing a trial without a three-day delay in deliberations, maintaining a zoning district as a single-family residential zone and … public safety and ‘aesthetics’”.  Among other things, they conclude that although the United States remains a stronghold for religious liberty by comparison with other countries, religious freedom prevails in less than half the cases, and that “free exercise claimants remain at a stark disadvantage in the face of generally applicable, religiously neutral laws.”

From the results of this study, it seems the legacy of Smith has worked all too well. Despite RFRA and state-level initiatives, the state under cover of “neutral” laws, still wins most of the time. And there is much reason to believe many of these neutral laws are not neutral at all, especially when we consider initiatives like the contraceptive mandate. But this study does give the lie to the arguments of some secularists that religion is too powerful in our society. The contrary seems to be increasingly the case.

Around the Web this Week

Some interesting law and religion news stories from around the web this week:

Should Catholic Hospitals be Catholic?

This is the kind of essay that we will see more of. Jerry Coyne argues that religious liberty has no place in hospitals, “even Catholic ones.” The piece nicely combines bigotry in the name of science with an innocence of what actually would happen if he were heeded. It is somewhat shameful that The New Republic would publish such a tendentious piece, but then again, that magazine is not what it once was.

Coyne makes two points. First, he argues that the mere prevalence of Catholic hospital networks means they should have to waive objection to treatments they find morally objectionable – in Coyne’s tragic real life example, that of a woman who needs a caesarean and a tubal ligation. The Catholic hospital agreed to perform the first but not the second (leave aside for a moment whether this is congruent with Catholic teaching, and it is unclear whether the tubal ligation was necessary at the time).

Second, Coyne basically says Catholic institutions can’t be Catholic:

One could [love that could! – ed.] argue that yes, individual doctors who are pious Catholics should not be compelled to perform birth control, even when necessary to save a woman’s life. But, as noted above, the Church Amendment also stipulates that a Catholic hospital itself cannot be forced to perform practices [sic] sterilizations or abortions. Even if its doctors aren’t Catholic, then, and are willing to do the ligation, they must abide by the law and tell Mann to go elsewhere.

Coyne ignores a couple of key points. First, the reason why rights are considered immune from state interference is precisely to avoid the lazy utilitarian argument Coyne sets out. It doesn’t matter if there are many religious institutions or a few, the state cannot abrogate religious freedom in the name of secular goals.

The second point Coyne tries to make is simply unrealistic. If Catholic hospitals allowed non-Catholic doctors to perform procedures contrary to Catholic doctrine, how would a patient even know? Would the hospital be required to keep such doctors on staff, just in case? How about nurses or other employees; would there have to be a quota for them as well? This is another reason why institutional affiliation and exercise of corporate rights makes sense; it eliminates confusion and burden in the exercise of a right. And as Hobby Lobby shows, there is nothing unconstitutional about an institution acting on its beliefs.

Ballard and Sincere Religious Beliefs, Part II

In an earlier post, we considered United States v. Ballard and its attempt to draw a workable line between protecting religious exercise and enforcing the law.

That case involved fraud and taking money from others, and the court distinguished between beliefs (whose veracity could not be questioned), and whether the defendants actually believed (if not, they were committing fraud). In the world of the 1940s, and its relatively monolithic Christian culture, it is not hard to understand how the jury reasoned its way to a conviction. One should not commit fraud whatever one’s religious beliefs.

But in the contemporary administrative state those questions are much more complicated, both because of the reach of the law and our much more openly pluralistic society. Given the myriad aims and interests the government now purports to serve, the chances of Ballard being applied more broadly increases. The danger of outright religious persecution is not yet as dire as Justice Jackson contemplated in his Ballard dissent, but under this logic the substantial burden part of the balancing test seems less secure.

There are a number of ways a court might assess whether the sincerity of religious belief applies to a given regulatory situation.

A court might conduct a fact finding exercise to see whether the religious beliefs, even if sincere, could actually apply to the law at issue. This seems to be the process followed in Zubik. But the court disagreed with the objectors’ view that accommodation would implicate them in activity they believed morally wrong. One could take the Jackson position, that a court cannot question either the substance of the beliefs or whether defendants actually believe them. People often believe things that seem outlandish to others, and to draw the line where the Ballard majority did would invite unwelcome scrutiny of religious conduct.

But another way is to look at the sincerity of the government’s beliefs, which has the advantage of being compatible with the current balancing test framework for analyzing substantial burden, is to look at the government’s sincerity. RFRA does part of the work. As the Supreme Court has stated, “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” But that does not go to whether the government’s interest is, in fact, compelling. The law of free speech has some categories of compelling interests that justify narrowly-tailored restrictions on speech. Religious freedom cases, generally, have not articulated similar standards. Courts have often just assumed that the interest the government asserts is compelling, even if it is pitched at a high level of generality, such as “health” or “equality.” Even the contraceptive mandate cases focus more often on the least restrictive means part of the balancing test, but do not question the legitimacy of the governmental interests. The mandate cases have the opportunity to declare that generic interests, as applied to particular plaintiffs, are not sufficiently clear to be compelling without further evidence of what those interests actually mean.

Ballard and “Sincere” Religious Beliefs

Marc DeGirolami kindly referred me to United States v. Ballard on the question of how, or whether, courts should analyze a person’s “sincere” religious beliefs. The defendants in Ballard had been convicted of fraud. The misrepresentations concerned the religious “I AM” movement, which the Ballards had founded. The court instructed the jury not to consider whether the defendants’ beliefs were true or false, but whether the defendants believed them to be true. If so, they were to be acquitted. The jury convicted them of a scheme to defraud. The Court of Appeals reversed, arguing that the question of truth or falsity also needed to be presented to the jury.

The Supreme Court reversed, and found the district court had properly excluded the question of truth from the jury. The majority opinion (written by Justice Douglas) affirmed that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”  Yet the majority found that the defendants could be convicted of fraud for not really believe what they said, even if the content of that belief was outside judicial notice. Justice Jackson, in dissent, stated that he could “not see how we can separate what is believed from what is ‘believable’” and warned of the potential for religious persecution. He would have affirmed the reversal of the conviction.

Ballard is regularly cited (for example in the contraceptive mandate cases) for the proposition that courts cannot question the sincerity of religious beliefs. That is true, but the result in Ballard was upheld nonetheless. The Supreme Court determined that a court could rule on the acts of the plaintiffs (there, misrepresentations) without caring whether their belief was true. Cases like the Third Circuit Zubik case are doing something similar when they hold that “free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.” There, the Court found that requiring religious institutions to fill out the accommodation form was not prohibited, because it disagreed that doing so interfered with the exercise of their religious beliefs, as the Court interpreted them.

So although the strict terms of the balance-shifting test may seem to support those seeking the accommodation, that is only a matter of drafting a statute that is better tailored to further government interests. The more basic question – who gets to decide “substantial burden” and on what grounds – still weighs against believers.

The Value of the Humanities and Heterodoxy

Readers of the CLR Forum see every day how scholarship in the humanities and social sciences directly affects the laws and policies that govern our lives. That important perspective is not shared widely enough. On that score, two items of interest appeared last week.

First, TIME reported that “[m]ore than two dozen Japanese universities … will reduce or altogether eliminate their academic programs in the humanities and social sciences, following a dictum from Tokyo to focus on disciplines that ‘better meet society’s needs.'”

In tough times, policymakers tend to think of the academic disciplines outside the sciences as a luxury good, easily abandoned in favor of more practical pursuits. But, in fact, really good scholarship across the humanities and social sciences is necessary to help us try to figure out what kind of society we want to be, and what it will take for us to figure out how to work together to get there.

One reason for society’s lack of enthusiasm for the humanities and social sciences is that it tends to be politically monotonal. The best recent studies suggest that less than 5% of academics in these fields at research universities have right-of-center social and political views. Not surprisingly, this can lead to scholarship that downplays, misunderstands, or simply overlooks views widely held among the public and policymakers.

The Heterodox Academy, recently reported in The American Interest, looks like a very important effort to bring more balance into academic scholarship. A politically diverse group of scholars is setting out to bring a greater degree of viewpoint diversity to scholarship, especially in the social sciences. This effort should not only make scholarship more useful, but it will make it more intellectually invigorating, as well.

For what it’s worth, I have much more to say on these topics in a book coming out in just a few weeks called, Why We Need the Humanities.

Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.