Tag Archives: Articles

Aroney on Freedom of Religion as an Associational Right

The latest issue of the University of Queensland Law Journal is devoted entirely to issues of federalism and freedom of religion in Australia.  One article by Professor Nicholas Aroney, Freedom of Religion as an Associational Right, is particularly informative.  You can read the article in its entirety here.

In his article, Professor Aroney argues that the religious freedom clauses of the Australian Constitution (section 116), which were modeled after the American First Amendment, should be interpreted to protect not only individual rights, but also communal or associational rights.  In support of this contention, Professor Aroney provides an impressive textual and historical analysis of section 116.  He further shows how this interpretation is in accord with international law.

According to Professor Aroney, correctly interpreting section 116 is of fundamental importance, because to interpret it as protecting merely individual rights has the potential to severely weaken religious freedom. Here is Professor Aroney (footnotes omitted):

Efforts to impose an individualistic view of human rights … continue to be made by groups such as the Discrimination Law Experts Group, who argue that the rights of religious organisations engaging in ‘public sphere activities’ should simply be trumped by the rights of individuals ‘to be treated in a non-discriminatory way.’ The Public Interest Law Clearing House and the Human Rights Law Resource Centre have argued similarly, maintaining that permanent religious exceptions to antidiscrimination laws facilitate and condone discrimination by protecting ‘traditional social structures and hierarchies’. Although the context is that anti-discrimination laws apply only in certain ‘public’ contexts, the reasoning is not so limited. These arguments are not unlike that of Stephen Macedo, who advocates that modern liberalism must ‘constitute the private realm in its image’ by forcing citizens ‘to observe its limits’ and ‘pursue its aspirations’. Such persons are to be actively coerced, Macedo candidly asserts, ‘to help ensure that freedom is what they want’, even in ‘their most “private beliefs”’.

 The underlying individualism of this line of argument has been made clear by Margaret Thornton, who has argued that although the ICCPR protects the right to exercise freedom of religion ‘in association with others’, this right not only has to be balanced against the competing rights to equal treatment and non-discrimination, but all such rights need to be understood, fundamentally, as the rights of human beings – not of corporations – and so it is a ‘logical fallacy to extrapolate from an individual’s private beliefs to an impersonal for-profit corporation’. Thornton’s argument shows the weakness of religious freedom rights if they are conceptualised in reductively individualistic terms. This is because one would have to show, first, that certain individuals have particular religious convictions that are legally protected and, second, that these same individual rights are being expressed through the religious corporation’s rules or practices. If religious rights are conceptualised as inherently ‘private’ in this sense, it will be that much more difficult to establish that such rights are really being exercised as private rights in various domains of ‘public’ or ‘quasipublic’ life. But on the contrary, as has been seen, international human rights principles, while certainly premised on the rights of the ‘human person’, are not exclusively concerned to protect only individual rights or only private expressions of religious conviction.

Another problem with individualised conceptions of human rights in this domain is that such rights, although originally conceived as rights against the state, can nonetheless ‘double up as rights against everyone’. Accordingly, as Julian Rivers has shown, there are some for whom it is not sufficient that an individual has a right of ‘exit’ from his or her religious community. Rather, there is evidence ‘of a growing assumption that everyone who wishes should be able to join any religious body’ and that ‘membership tests are suspect’. The underlying assumption, in other words, is that ‘the preservation of religious identity on the part of civil society groups needs justification against the individual who does not share that identity’, even though to adopt such an approach ‘is potentially destructive of the identity of [all] non-State collectivities’. For if any individual can decide whether he or she qualifies for membership of an organisation, no organisation will be able to maintain its distinctive identity.

This reductio ad absurdum suggests that a radical individualist conception of religious liberty is simply incompatible with the existence of religious associations and communities as distinguishable groups within a society. Against such a view, William Galston has observed:

 It is not obvious as an empirical matter that civil society organisations within liberal democracies must be organised along liberal democratic lines… A liberal policy guided … by a commitment to moral and political pluralism will be parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will rather pursue a policy of maximum feasible accommodation, limited only by the core requirements of individual security and civic unity. That there are costs to such a policy cannot reasonably be denied. It will permit internal associational practices (e.g. patriarchal gender relations) of which many disapprove. It will allow many associations to define their membership in ways that may be viewed as restraints on individual liberty … Unless liberty – individual and associational – is to be narrowed dramatically, however, we must accept these costs.

 A reductively individualist conception of religious freedom is obviously opposed to the capacity of such groups to determine their own conditions of membership, but an excessively narrow associational conception may also have this effect, for there are many social groupings and traditional communities, including religions, in which membership does not initially arise by deliberate choice but by birth and circumstance. Whether voluntaristic or otherwise, unless such associations and communities are going to be understood, following Thomas Hobbes, as ‘worms in the entrails’ of the body politic, we need to recognise, as Harold Laski argued, that they are ‘as real, as primary, and self-sufficing as the whole [society]’. This does not mean of course that communal religious rights must always prevail. But it does mean that they ought to be treated with the same respect as the rights of individuals. As such, from a liberal point of view, what is most crucial in order to protect individuals is not the right to join (or remain) within a group, but the right to exit it. On this approach, the question of the legitimacy of a law which regulates a religious association becomes one of determining what conditions, if any, must accompany an effective exit right, understood to include the rights to associate, disassociate or not associate with a particular religious community on terms offered by that community. Alternatively, from a more communitarian point of view, what matters is that a religious group genuinely benefits its members and does not inappropriately interfere with the legitimate interests of those outside the group. These are large questions, of course, which lie beyond the scope of this article, the point of which has been to establish the associational and communal dimensions of religious freedom as a matter of principle.

 

Horwitz, “The Hobby Lobby Moment”

Our friend, Paul Horwitz, has just published his essay, The Hobby Lobby Moment, in the latest issue of the Harvard Law Review. The piece is well worth reading and reflecting on. It is written in Paul’s characteristically thoughtful and insightful manner, and it makes many points about the social and cultural context of the case that cut much deeper than most of the commentary on what has been, to put it mildly, a controversial decision. Even on those issues where I see things a little differently than Paul (for example, I am much more skeptical than is Paul about the degree to which there was ever consensus about the good of religious free exercise in the legal academy, and therefore about whether there is any substantial fragmentation of that consensus today), the points he makes are interesting, original, and thought-provoking.

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

Finally, a Use for Reprints

reprintsA little end-of-summer humor for our academic readers.

Annicchino on the EU and Religious Freedom

Pasquale Annicchino (European University Institute) has posted an new paper on SSRN, Is the European Union Going Deep on Democracy and Religious Freedom. Here’s the abstract:

In recent years the European Union has begun to explicitly affirm a foreign policy role for freedom of religion or belief (FoRB). The initial reaction to this trend among many scholars and policy analysts has largely been that of caution—if not outright skepticism—regarding the practical import of the changes. However there are signs of continuing momentum. While the EU’s record thus far does not yet reflect a fully comprehensive strategy for integrating FoRB into its broader agenda for promoting deep democracy, it has been able to enlarge the role of FoRB in its external action on a step-by-step basis.

Meese and Oman on Hobby Lobby

Alan Meese and Nate Oman, both of William and Mary, have written an exceptionally lucid essay in the Harvard Law Review Forum on one of the main issues in Hobby Lobby: whether a for-profit corporation can qualify as a person for purposes of RFRA. It’s one of the best things on Hobby Lobby I’ve read and I recommend it to people trying to make sense of the issue.

Meese and Oman make three big points. First, closely-held corporations like Hobby Lobby fit naturally within RFRA’s language. Second, there is nothing unusual about closely-held corporations that embody shareholders’ religions. Many such firms exist, and they do not violate some elementary principle of corporate law. Third, limiting the exercise of religion to natural persons mistakes an important goal of religious freedom. “[R]eligious freedom is broader than an individualist concern with personal rights,” they explain. “Rather, it is about limiting the ability of the state to regulate a particular kind of conduct–religious exercise–even when corporate bodies engage in that conduct.”

To me, the second point is the most suggestive for the outcome of Hobby Lobby. Most people think of corporations as large, publicly-traded firms with thousands of passive shareholders who have little to do with day-to-day operations: Exxon Mobil. It would be strange for such a corporation to exercise a religion. But most corporations, like Hobby Lobby itself, are small, private firms with a handful of shareholders. It’s not at all strange to think that the five owners of Hobby Lobby could legitimately want to run their corporation in a way that advances their religious values.

Meese and Oman argue against drawing a distinction, for RFRA purposes, between large corporations like Exxon Mobil and close corporations like Hobby Lobby. But the distinction could be a way for the Court to avoid practical difficulties. The Court could hold that close corporations like Hobby Lobby are RFRA persons and save the question of large corporations for another day. Indeed, Chief Justice Roberts hinted at that outcome during oral argument.

We’ll see what the Court decides. Meanwhile, Meese and Oman have written a very worthwhile essay. You can read it here.

The Weekly Five

In this week’s list, articles on comparative law and religion, freedom of association, special protection for religion, and constitutional faith:

1. Larry Catá Backer (Pennsylvania State University – Dickinson School of Law), The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States. This essay in comparative constitutional law addresses the “privileging” of institutional religion in political life. Solicitude for individual religious belief and practice is not the problem, the author suggests, but the “willingness to allow institutional religion a role in the political life of the state.” The author surveys the situation in foreign countries for “lessons that might be considered by the United States as it seeks to carve a privileged role for religion while protecting its status as something special that cannot be touched by politics.”

2. Neil J. Foster (Newcastle Law School – Australia), Christian Youth Camp liable for declining booking from homosexual support group. In this case comment, Australian legal scholar Neil J. Foster critiques a recent Australian appellate court judgment fining a Christian youth camping organization for refusing to book an event by a homosexual support group. Foster argues that the case is significant, among other reasons, for equating discrimination based on homosexual conduct with discrimination based on sexual orientation, and for holding that corporations are not “persons” who can exercise religion under Australian law.

3. Christopher P. Guzelian (Thomas Jefferson), False Speech: Quagmire? In this essay, the author describes the difficulties courts have in resolving “false speech” cases and argues that the difficulties result from disagreements about the nature of objective truth. Although the author does not advocate a coerced “biblical or natural law” jurisprudence, he does counsel a retreat from nihilism to “a certain kind of optimistic faith.”

4. Michael Stokes Paulsen (University of St. Thomas School of Law), Is Religious Freedom Irrational? This is a review of Brian Leiter’s recent book, Why Tolerate Religion? Paulsen argues that Leiter’s denial of special status for religion is based on “a surprisingly shallow, philosophically unsophisticated understanding of religious belief.” Paulsen writes, “religious belief, at least in certain forms, is entirely rational and reasonable and … the decision of the framing generation to protect specifically religious conscience and exercise is likewise entirely rational.”

5. Nelson Tebbe (Brooklyn Law School), Associations and the Constitution: Four Questions about Four Freedoms. This is a response to a recent article by John Inazu, in which Inazu argues that the four basic freedoms in the First Amendment—speech, press, religion, and assembly—together support the concept of “strong pluralism,” which would generally allow associations to limit membership on any ground, including race. Tebbe tackles the theoretical underpinnings of Inazu’s argument and questions whether Inazu’s “is the most principled and pragmatic solution available” to the problem of balancing associational and individual rights.

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Movsesian on Dworkin

For those interested, my review of Ronald Dworkin’s last work, Religion without God, appears in the current edition of Religion and Human Rights. The link is here; subscription required, I’m afraid!