Category Archives: Marc O. DeGirolami

White Reviews The Tragedy of Religious Freedom

very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don’t disagree with anything in it!

And for something rather different (and speaking of Holmes), here’s a column from Reason (whose tagline is “Free Minds and Free Markets”) about tradition whose conclusion is that “We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.” Judge Posner is quoted as saying, “How can tradition be a reason for anything?”

“Creedal Discrimination is Still Discrimination”

A very interesting essay in Christianity Today on the author’s experience at Vanderbilt with its “all comers” policy. One feature of the piece that struck me was how such policies end up flattening out beliefs or creeds as such. Readers may remember that another policy like this was the subject of the complaint in CLS v. Martinez some years ago. The terrible problem that these policies seek to remedy seems to be that people have distinctive beliefs. The policy’s aim seems to be to compel all associations to reflect certain core commitments, which in turn destroys their own distinctive creeds, thereby demolishing what is special about them in the first place:

In writing, the new policy refers only to constitutionally protected classes (race, religion, sexual identity, and so on), but Vanderbilt publicly adopted an “all comers policy,” which meant that no student could be excluded from a leadership post on ideological grounds. College Republicans must allow Democrats to seek office; the environmental group had to welcome climate-change skeptics; and a leader of a religious group could not be dismissed if she renounced faith midyear. (The administration granted an exception to sororities and fraternities.)

Like most campus groups, InterVarsity welcomes anyone as a member. But it asks key student leaders—the executive council and small group leaders—to affirm its doctrinal statement, which outlines broad Christian orthodoxy and does not mention sexual conduct specifically. But the university saw belief statements themselves as suspect. Any belief—particularly those about the authority of Scripture or the church—could potentially constrain sexual activity or identity. So what began as a concern about sexuality and pluralism quickly became a conversation about whether robustly religious communities would be allowed on campus.

In effect, the new policy privileged certain belief groups and forbade all others. Religious organizations were welcome as long as they were malleable: as long as their leaders didn’t need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn’t prioritize theological stability. Creedal statements were allowed, but as an accessory, a historic document, or a suggested guideline. They could not have binding authority to shape or govern the teaching and practices of a campus religious community.

Law and Religion Moot Court Competition at Touro

From Professor Samuel Levine of Touro Law School comes some information about the impressive looking 2nd Annual Moot Court Competition in Law and Religion at Touro Law School. Details follow.

Touro Law Center is pleased to announce our 2nd Annual National Moot Court Competition in Law and Religion. The semi-final and final rounds of the competition will take place at the Alfonse D’Amato Federal Courthouse, located directly across the street from Touro Law Center in Central Islip, NY. Awards will be presented to individuals and teams for first and second place, for top three best briefs, and top six best oralists. Accommodations will be available within walking distance of the law school and the courthouse. Touro Law is located within an hour of New York City and the metropolitan airports. 
 
United States District Court Judges and Magistrate Judges of the Eastern District of New York in Central Islip will be judging the semi-final rounds. The finals bench will include:
 
Hon. Harris L Hartz, United States Court of Appeals for the Tenth Circuit
Hon. Loretta A. Preska, Chief Judge, U.S. District Court, Southern District of NY
Hon. Kenneth Starr, President and Chancellor of Baylor University, U.S. Circuit Judge for the D.C. Circuit (1983-1989), Solicitor General of the United States (1989-1993)
 
Law Schools interested in participating should contact Jason Prince, Editor-in-Chief at mootcourt@tourolaw.edu<mailto:mootcourt@tourolaw.edu> or by phone at (631) 761-7173 or Associate Dean Myra Berman at mberman@tourolaw.edu<mailto:mberman@tourolaw.edu>.

Conference on International Religious Freedom Photo Gallery

This summer, the Center for Law and Religion co-hosted a conference in Rome, “International Religious Freedom and the Global Clash of Values,” with the St. John’s Center for International and Comparative Law and LUMSA University. We were honored that Pope Francis offered some remarks on religious freedom to kick off the conference. Pictures of various conference-related events can be found below.

Annicchino on Religious Freedom as a (Non-)Priority in Italy and the EU

Our friend and former guest blogger Pasquale Annicchino (European University Institute) has a strong column on the extent to which religious freedom has, and has not, been a priority for the Italian government and the European Union in general over the last decade or so. He criticizes what he describes as vague sloganeering and lack of action, particularly in the context of the many grave threats posed by ISIS. The column is in Italian, but here is a bit of the original with a quick and dirty translation:

Quello che avviene in queste ore era largamente prevedibile, non era forse evitabile. Sono anni che i principali centri di ricerca, tra tutti il Pew Forum, segnalano la crescita di discriminazioni e persecuzioni ai danni di diverse minoranze religiose in varie zone del mondo. La reazione rispetto a questi dati è stata spesso quella di fare spallucce, di dire che poi, effettivamente, niente di così grave stava succedendo. Il governo italiano, tramite l’azione del Ministero degli Esteri, ha provato negli ultimi anni ad interessarsi al tema della libertà religiosa nel contesto della sua politica estera ma i risultati sono stati praticamente nulli.

[What is happening in these moments was largely foreseeable, though perhaps not avoidable. For years, the principal research centers, foremost among them the Pew Forum, signaled the growth of discrimination and persecution of diverse religious minorities in various regions of the world. The reaction to this data was frequently that of shrugging, or of then saying that, effectively, nothing very serious was happening. The Italian government, through the actions of the Minister of Foreign Affairs, has tried in the last years to become interested in the subject of religious freedom in the context of its foreign policy but the results have been almost nothing.]

Drakeman on Garnett on the Freedom of the Church

Our friend and board member Don Drakeman has a typically smart and interesting response to Prof. Rick Garnett’s excellent piece on the freedom of the church. Over the last few years, Rick has been developing an account of the freedom of the church that depends on the idea of institutional rights (see also Paul Horwitz’s work). 

Don applies the same sorts of methodological insights that he uses in this very good piece about originalism to the idea of the freedom of the church. That is, he considers the sense in which the freedom of the church is, in fact, deemed by the public to be a fundamental right, but also how, as one moves out of the church “sanctuary” and into the world, the world begins to resist. A bit from Don’s piece:

If we were to commission a survey asking, “Should churches have the right of religious freedom?,” I suspect that, except for some parts of académe, the most common response would be: “What is this, some sort of trick question?” After all, two-thirds of the public have recently said that corporations should have “certain religious freedoms.” (From a 2014 “State of the First Amendment” poll that can be found here.) If that many people would, at least in the abstract, give businesses the freedom of religion, it seems likely that nearly all would give that right to churches as well.

It is also likely that the public doesn’t really know what it means for companies, or even churches, to have religious freedom—just that it makes sense. Could we gain more insight on this by considering a contemporary controversy? A “hot button” issue at the moment is what many have called the “contraception mandate.” Here, the pollsters have some interesting data, but first a methodological question: If people are asked about exemptions from the mandate, won’t they just use the question as a proxy for their views on either contraception or healthcare reform, or both? Separating those issues is admittedly hard, but the data may nevertheless tell us something about the public’s sense of the freedom of the church—in particular, what counts as “the church.”

In a March 2012 Public Religion Research Institute poll, Americans were asked if publicly held corporations should be required to provide health plans including contraception at no cost. A total of 62 percent said yes. For “churches, and other places of worship,” only 42 percent said yes. In between were religiously affiliated colleges (54 percent) and hospitals (57 percent). Since the underlying issues of contraception and the Affordable Care Act were the same in each case, the percentages for these three types of institutions should provide us with at least a rough reflection of the public’s sense of the relative strength of each one’s claim for a religiously based exemption.

The take-home here, I think, is twofold. First, the public does seem to believe that there is something to the concept of the freedom of the church; and second, there is a stronger claim for the exercise of that freedom for churches as places of worship than for, say, Notre Dame, Baylor or the country’s large network of religiously-affiliated hospitals.

Satanists Claim Hobby Lobby Exemption from Abortion Informed-Consent Laws (via Huffington Post)

The Huffington Post reports that The Satanic Temple believes that its religious rights are infringed when its members receive anti-abortion pamphlets and information in those states that require informed consent before proceeding with an abortion. The Satanists seem to believe that they can use the Hobby Lobby decision to press their claim. You can see some of the other beliefs of the Satanists at the link.

But the informed-consent laws that the Satanists object to are state laws. This is the document that the Huffington Post pastes onto its story purporting to evidence the claim. Although it does tend to be forgotten and get lost in the nonsense (even by some Supreme Court Justices who took part in the decision), it’s important to remember that Hobby Lobby was a decision under the Religious Freedom Restoration Act. RFRA applies only against the federal government. Perhaps there are some federal abortion informed-consent laws that the Satanists object to as well (though the Huffington Post did not list any of those). At any rate, RFRA won’t be of much help to the Satanists if they are objecting to state informed-consent laws.

That’s of course all before getting to the test that RFRA actually sets out, even if RFRA applied (which it doesn’t). The Satanists would need to show that the mere reception of information about abortion intended to render their consent to an abortion informed imposed a substantial burden on their religious exercise. That seems rather different to me than the threats of financial penalty imposed by the contraceptives mandate on Hobby Lobby. The Satanists would also need to counter the government’s compelling interest in ensuring that a person’s consent was indeed informed before proceeding with an abortion, as well as satisfy the least restrictive means analysis. That would be a challenging standard to meet as well.

The Civil Religion of the First World War

Yesterday was the centenary anniversary of the beginning of World War I. On July 28, 1914,  one month after Archduke Franz Ferdinand of Austria was assassinated, the Austro-Hungarian empire made its first moves against Serbia. The Great War would end more than four years later.

This weekend, I visited the Museum of Fine Arts in Boston, which was hosting a very fine exhibit of American World War I posters. I was struck by the powerful imagery of civil religion in many of them. Here are two exhorting the purchase of war bonds that stood out to me as particularly representative of the genre:

World War I #2

World War I #1

And this afternoon, to remember the War, Mark and I visited the Flag Pole Green in Queens, New York, which has this lovely memorial to the men of Queens who died in the War:

World War I #3Just a few fragments of civil religion–that perennial social coagulant–in memory of the war to end war.

The Forum in the Law Reviews

One interesting development in legal scholarship over the last 10 years or so is the increasing importance and prominence of legal blogs as a source of academic commentary. And one measure (a minor one, to be sure, but an interesting one) of the success of legal blogs in affecting legal academic commentary and discussion is the growing frequency of their citations in traditional law reviews. I am surely not the first to make these observations, and doubtless other legal blogs have been cited in law reviews more times than has our relatively young Center for Law and Religion Forum, which is 3 years old. Still, here are the Forum’s citations in the law reviews over its life:

1. Andrew Koppelman, “Freedom of the Church” and the Authority of the State, 21 J. Contemp. Legal Issues 145 (2013).

  • FN 95: “Steven D. Smith, How Important is Public Support for Religious Freedom?, Center for Law and Religion Forum, July 16, 2012, http://clrforum.org/2012/07/16/ how-important-is-public-support-for-religious-freedom-2-2/).”

2. Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, 122 Yale L.J. 1964 (2013).

3. Marie A. Failinger, Twenty-Five Years of Law and Religion Scholarship: Some Reflections, 30 Touro L. Rev. 9 (2014).

4. Elizabeth A. Clark, Liberalism in Decline: Legislative Trends Limiting Religious Freedom in Russia and Central Asia, 22 Transnat’l L. & Contemp. Probs. 297 (2013).

  • FN 95: “Mark L. Movsesian, Copycats, Ctr. for L. & Religion Forum (Aug. 25, 2012),http://clrforum.org/2012/08/25/copycats (noting arrest of copycat protesters who interrupted service in cathedral in Cologne, Germany).”

5. Michael A. Helfand, Religion’s Footnote Four: Church Autonomy As Arbitration, 97 Minn. L. Rev. 1891 (2013).

  • FN 134: “Michael Helfand, The New Footnote Four?, Center for L. & Religion (May 25, 2012), http://clrforum.org/2012/05/25/the-new-footnote-4/ (arguing that footnote four of Hosanna-Tabor undermines the jurisdictional approach to the religious clauses)”

6. Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 344 (2014).

7. Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon L. Rev. 37 (2014).

8. Perry Dane, Natural Law, Equality and Same-Sex Marriage, 62 Buff. L. Rev. 291 (2014).

Is More Less? Or is More More?

The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?

The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger’s key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to “balance” the right against rival interests.

That particular “more-is-less” claim depends on the scope given to a protected right. A related “more-is-less” claim focuses on the expansion of the number of protected rights. That’s the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven’t seen it, Steve is writing up a storm over there). Steve writes:

[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights…“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)….

Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are “substantial” trigger the law’s protection. A religious burden isn’t enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we’ve now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of “substantiality” and we talk about the shifting of burdens and the balancing of interests because we’ve watered down the basic right so much that we don’t even really know what it is that counts as the right in the first place any longer.

But there is another side to the story. That side is admirably represented by John Inazu in this paper–More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of “rights confinement” as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest–that is, in what government ought to be interested in at all.

Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen.

If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right’s prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right’s strength and ambit, but evolving cultural perceptions of the strength and ambit of the state’s proper power.