Tag Archives: First Amendment

About Those Religion Surveys …

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Image from Patheos

The latest edition of First Things magazine, currently available only in print, contains an important piece by Princeton sociologist of religion Robert Wuthnow, “In Polls We Trust.” Actually, it’s one of the most important pieces on American religion I’ve read in quite a while. Not for what it says about American religion, necessarily. Wuthnow’s piece is important because of what it says about the polls on which everyone, academics included, rely for insights on American religion.

It’s hard to overestimate the importance of these surveys. Scholars pore over the results to ascertain trends, and, on the basis of those trends, to evaluate the state of American institutions: churches, government, courts. For example, the much touted rise of the “Nones,” the percentage of Americans with no religious affiliation, has implications for our First Amendment jurisprudence. The fewer Americans who identify with institutional religion, the weaker we can expect First Amendment protections to get.  Or so some scholars, myself included, have argued.

Of course, everything turns on the accuracy of the surveys. Most of us, not being statisticians, more or less take them on faith. If Wuthnow is right, though, our faith is misguided. He points out that many surveys of American religion have serious methodological flaws. For example, religion does not always lend itself to straightforward yes/no questions of the sort surveyors ask. In addition, pollsters sometimes fail to account for regional and racial variations.

Most important, response rates are very low. The typical response rate nowadays is about nine or 10%, and rarely exceeds 15%. “In other words,” Wuthnow writes, “upwards of 90% of the people who should have been included in a poll for it to be nationally representative are missing. They were either unreachable or refused to participate.” With such poor response rates, it’s hard to know what the polls reveal about religion in America. This problem is compounded by the fact that the media present the results as accurate representations of what Americans believe – a misimpression that the polling industry, now worth a billion dollars a year, is understandably reluctant to correct – and by the fact that most of us “are unlikely to wade through obscure methodological appendices to learn if the response rate was respectable or not.”

Consider the rise of the Nones, for example. Maybe we really are seeing an explosion in the number of Americans without a religious affiliation, as these surveys suggest. But maybe we aren’t. Maybe the number of Nones is actually much lower. Maybe the number is much higher. Wuthnow’s point is, it’s hard to know on the basis of flawed polls. Now, to be sure, there are other indications that organized religion is declining. Some churches keep membership records; these are harder numbers, and they show that some churches are experiencing declining memberships. Still, one has to be a little careful about declaring trends on the basis of limited information.

The inaccuracy of the polls is more than just an academic matter, because polls may actually help drive social change. It’s human nature to want to follow the crowd. If you think that Nones are the wave of the future, you’re more likely to call yourself one; if you think that church is a dying institution, you’re more likely to leave. On the basis of these polls, pundits will write stories about the new religious movement; advertisers and other cultural influencers will take note of the polls and factor them into their work. Before you know it, the decline of religion and the rise of the Nones will be matters of conventional wisdom people take for granted. In other words, polls can have a disproportionate social impact, even if they are unreliable.

None of this is to say that organized religion isn’t in fact experiencing a decline; as I say, there are plenty of indications, other than these polls. But I wonder how major polling firms will respond to Wuthnow’s criticisms. At the very least, his essay suggests we should treat surveys on American religion with more caution than we do.

More on Subway “Viewpoint” Ads

Here’s a follow up to last week’s post about disclaimers on “viewpoint” ads in the New York City subway. In the post, I complained about the unfair treatment the policy affords to ads with religious messages, like the one I described from Marble Collegiate Church.

As Perry Dane explains, though, the disclaimer policy is not directed at religion per se. It applies generally to noncommercial ads that express viewpoints on “political, religious, or moral issues or related matters.” The Metropolitan Transit Authority adopted the policy after losing a 2012 lawsuit over display of anti-Islam ads. A federal district court ruled that, because the subway is a public forum, the MTA could not constitutionally refuse to display the ads. So the MTA decided to add the disclaimer to them and all other “viewpoint” ads, in order to avoid any implication of government endorsement. (The sponsor of the 2012 ads, the American Freedom Defense Initiative, is currently suing the MTA over display of a new anti-Islam ad, which the MTA refuses to display even with the disclaimer, on the ground that the ad may incite violence).

Still, whatever the formal policy, the MTA appears to apply it in a rather arbitrary way. I did a little research over the weekend. From what I could find, the policy has been applied to the AFDI ads; an ad for a Spanish-language Catholic television station; an ad from the Brooklyn Diocese featuring Pope Francis; and the Marble Collegiate ad I wrote about last week. All religious. What about disclaimers on ads that express viewpoints on political, moral, and related matters? Perhaps there are examples, but I couldn’t find any. More importantly, in no time at all I found three such ads without disclaimers.

IMG_20141221_174338_374First, there’s this ad for New York Cares, a volunteer organization that runs an annual coat drive. The ad clearly expresses a moral viewpoint, namely, that many New Yorkers go without winter coats, and the community has a moral obligation to respond. In fact, the ad’s use of the Statue of Liberty, a symbol of America and the refuge it has provided for the world’s “huddled masses,” adds a political dimension. How can we tolerate such poverty in this great republic of ours? To be sure, these messages are non-verbal, but that’s what makes them so powerful. There’s no MTA disclaimer.

08-airbnb-2.w529.h421.2xOr take this ad for Airbnb, a website that helps people rent space in their apartments to strangers for short stays. This ad campaign, which features New Yorkers saying how great Airbnb is for the city, has a political message as well, though you might not spot it if you’re not from New York. The company is trying to get the state legislature to loosen a law that restricts the use of private apartments as hotels. The ads are an obvious attempt to win public support for that effort. Still, notwithstanding the ad’s political implications, there’s no MTA disclaimer.

HillaryFinally, here’s the latest ad campaign for Manhattan Mini Storage. The company is famous for ironic, edgy ads that appeal, I guess, to sophisticated New York subway riders. Here, the political message seems pretty clear. True, this might be just another ironic ad (“Can you believe she’s running again?”) but I don’t think so, given the partisan messages in the company’s past ad campaigns, like ones poking fun at Michelle Bachmann and advocating gay marriage. Yet, again, no MTA disclaimer.

Now, the MTA would presumably defend its choice not to put disclaimers on the Airbnb and Manhattan Mini Storage ads because the policy formally applies only to noncommercial ads. But that seems arbitrary. As Marc DeGirolami pointed out last week, it’s very difficult to disentangle “commercial” from “noncommercial” expression. To my mind, the Hillary ad is the most obviously political, even though its sponsors are only trying to make money. Besides, the New York Cares ad is surely noncommercial–it’s for a volunteer organization.

As I say, perhaps the MTA has put disclaimers on non-religious viewpoint ads and I simply haven’t found them. It’s significant, though, that it’s so easy to find the disclaimer on religious viewpoint ads, and so easy to find political and moral viewpoint ads without the disclaimer. Here’s a thought: perhaps the MTA should stop trying to distinguish among ads and put disclaimers on all of them–commercial, noncommercial, political, moral, and religious. That would solve the appearance-of-endorsement problem, if the problem genuinely exists, and free up MTA resources for doing something important: running the subway.

Event at Hunter College: “American Education and the Separation of Church and State: Fact vs. Fiction”

The CUNY Institute for Educational Policy is hosting a discussion entitled “American Education and the Separation of Church and State: Fact vs. Fiction,” on December 4th at Hunter College. The discussants include Philip Hamburger (Columbia), Ashley Berner (CUNY), and Matthew Yellin (Hillside Arts and Letters Academy):

Most Americans know the term “separation of church and state,” but few understand it. Howhas the phrase influenced education policy and practice? How has the Supreme Court’s interpretation of the First Amendment evolved? Are tax credits and vouchers that enable funding for religious schools Constitutional? Are public school teachers allowed to talk about religion in the classroom? If so, how can they do so without violating the Establishment clause of the Constitution?

These are timely questions for New Yorkers: Albany is considering a tax credit bill that would provide support for Catholic, Jewish, and Muslim, and other non-public schools; international leaders are calling for better religious literacy in K-12 classrooms, so that young citizens are prepared to negotiate our diverse and increasingly interconnected world. For many Americans, however, public funding for religious schools, and open discussions about religious beliefs in public school classrooms, raise important concerns.

On December 4, the nation’s leading scholar of First Amendment jurisprudence will set out the history and current interpretation of separation, and a master teacher will discuss some challenges and solutions to navigating religious literacy in New York’s public school system.

Get details and register here.

“Religious Freedom in America” (Hertzke, ed.)

This January, Oklahoma University Press will release “Religious Freedom in America: Constitutional Roots and Contemporary Challenges” by Allen D. Hertzke (University of Oklahoma).  The publisher’s description follows:

Religious Freedom in AmericaAll Americans, liberal or conservative, religious or not, can agree that religious freedom, anchored in conscience rights, is foundational to the U.S. democratic experiment. But what freedom of conscience means, what its scope and limits are, according to the Constitution—these are matters for heated debate. At a moment when such questions loom ever larger in the nation’s contentious politics and fraught policy-making process, this timely book offers invaluable historical, empirical, philosophical, and analytical insight into the American constitutional heritage of religious liberty.

As the contributors to this interdisciplinary volume attest, understanding religious freedom demands taking multiple perspectives. The historians guide us through the legacy of religious freedom, from the nation’s founding and the rise of public education, through the waves of immigration that added successive layers of diversity to American society. The social scientists discuss the swift, striking effects of judicial decision making and the battles over free exercise in a complex, bureaucratic society. Advocates remind us of the tensions abiding in schools and other familiar institutions, and of the major role minorities play in shaping free exercise under our constitutional regime. And the jurists emphasize that this is a messy area of constitutional law. Their work brings out the conflicts inherent in interpreting the First Amendment—tensions between free exercise and disestablishment, between the legislative and judicial branches of government, and along the complex and ever-shifting boundaries of religion, state, and society.

What emerges most clearly from these essays is how central religious liberty is to America’s civic fabric—and how, under increasing pressure from both religious and secular forces, this First Amendment freedom demands our full attention and understanding.

Winer & Crimm, “God, Schools, and Government Funding: First Amendment Conundrums”

In January, Ashgate Publishing will release “God, Schools, and Government Funding: First Amendment Conundrums” by Laurence H. Winer, (Sandra Day O’Connor College of Law, Arizona State University) and Nina J. Crimm (St. John’s University School of Law). The publisher’s description follows:

In recent years, a conservative majority of the U.S. Supreme Court, over vigorous dissents, has developed circumventions to the Establishment Clause of the First Amendment that allow state legislatures unabashedly to use public tax dollars increasingly to aid private elementary and secondary education. This expansive and innovative legislation provides considerable governmental funds to support parochial schools and other religiously-affiliated education providers. That political response to the perceived declining quality of traditional public schools and the vigorous school choice movement for alternative educational opportunities provokes passionate constitutional controversy. Yet, the Court’s recent decision in Arizona Christian School Tuition Organization v. Winn inappropriately denies taxpayers recourse to challenge these proliferating tax funding schemes in federal courts. Professors Winer and Crimm clearly elucidate the complex and controversial policy, legal, and constitutional issues involved in using tax expenditures – mechanisms such as exclusions, deductions, and credits that economically function as government subsidies – to finance private, religious schooling. The authors argue that legislatures must take great care in structuring such programs and set forth various proposals to ameliorate the highly troubling dissention and divisiveness generated by state aid for religious education.

Gans & Shapiro, “Religious Liberties for Corporations?”

Next month, Palgrave Macmillan will release “Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution” by David H. Gans (Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center, USA) and Ilya Shapiro (Senior Fellow, Cato Institute).  The publisher’s description follows:

9781137484673.inddThis engaging book provides a comprehensive analysis of the issues in Burwell v. Hobby Lobby, the blockbuster legal challenge to the Affordable Care Act regulation that requires employer-sponsored health plans to provide contraceptive coverage. Through a series of debates between advocates on both sides of the case, the book tackles questions such as: whether for-profit corporations can assert religious-exercise claims under the First Amendment or federal law, whether businesses with religious objections to certain contraceptives should be exempt from coverage requirements, and what the consequences are of the Supreme Court’s June 2014 ruling in favor of Hobby Lobby. This case will be discussed for years to come, and the spirited debate between the authors provides fascinating and informative food for thought to scholars, students, and the public as they grapple with fundamental questions of corporate personhood, religious liberty, and health care policy.

Meadors, “American Public Religion in Frankfurter and Scalia Opinions”

This November, LFB Scholarly Publishing will release “American Public Religion in Frankfurter and Scalia Opinions” by David C. Meadors (Pastor at Broadus Memorial Baptist Church, Charlottesville, VA).  The publisher’s description follows:

Meadors demonstrates weaknesses in the originalist methodology for interpreting the religion clauses of the First Amendment. He concludes that even though courts have an important role to play in protecting religious liberty via the First Amendment this protection needs supplementation by robust advocacy among citizens and mediating institutions in the democratic process. His thesis is that Felix Frankfurter and Antonin Scalia found different forms of American public religion constitutional in their religion clause jurisprudences. Both applied originalist methodology in their religion clause opinions, but came to different conclusions. More specifically, Frankfurter focused primarily on the views of Thomas Jefferson and James Madison whereas Antonin Scalia has looked more broadly to the views and practices of John Adams, George Washington, and John Marshall in addition to Jefferson and Madison.

Cook, “First Amendment Religious Liberties: Supreme Court Decisions and Public Opinion, 1947-2013”

This month, LFB Scholarly Publishing releases “First Amendment Religious Liberties: Supreme Court Decisions and Public Opinion, 1947-2013” by Tracy L. Cook (Central Texas College). The publisher’s description follows:

Cook analyzes the relationship between Supreme Court decisions and public opinion concerning First Amendment religious liberties. Overall, the Court has issued opinions consistent with public opinion in a majority of its decisions dealing with the First Amendment’s religion clauses, with a level of congruence of almost seventy percent when a clear public opinion expression is present. She also provides a new perspective for understanding the long and contentious debate about prayer in public school by identifying an area of agreement between the Court and public opinion that has not received much attention.

Dalton, “Litigating Religious Land Use Cases”

In July, ABA Book Publishing released Litigating Religious Land Use Cases, by Daniel Dalton (Dalton & Tomich, PLC). The publisher’s description follows:

This book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)  and the First Amendment.  While the First Amendment dates to the founding days of the United States, RLUIPA is a much more recent federal law that can serve as an effective tool in protecting the property interests of religious organizations.

Litigating Religious Land Use Cases is intended to provide practical advice from the author’s personal litigation experiences. Generally, a religious entity will use all available means of resolving a dispute prior to entering into litigation. In the instance that a case results in litigation, this book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the RLUIPA and the First Amendment.

Chapter topics include:

  • The history of religious land use
  • Constitutionality of RLUIPA
  • Related religious land use claims

This book should serve as a useful guide for religious entities and the lawyers who represent them in navigating the challenges and uncertainties that inevitably surround a religious land use claim.

Conference: “Liberty and Justice for All” (October 2-5)

The Christian Legal Society will be hosting its national conference, “Liberty and Justice for All,” at the Boston Park Plaza on October 2-5:

Lawyers, law students, professors, judges and friends are invited to join us October 2-5 in Boston. We are excited that we will be hearing from great speakers like Professor Robert George, Dr. Russell Moore, Andy Crouch and John Stonestreet, as well as a wonderful religious liberty panel. And of course, we will continue to offer practical workshops and CLEs covering numerous areas of the law: from estate planning to running a Christian law firm to human trafficking to employment law and ethics, just to name a few.

Details are here