Tag Archives: First Amendment

Supreme Court Declines to Hear Wedding Photographer Dispute

The Supreme Court today denied certiorari in Elane Photography v. Willock, the case involving a claim by a photography business that it was compelled to create images celebrating a gay wedding pursuant to New Mexico’s public accommodations statute, in violation of the business owner’s First Amendment rights.

The decision by the Supreme Court not to hear the case leaves in place the New Mexico Supreme Court’s decision against Elane Photography.

Movsesian on the Rise of the Nones

Mark has a very interesting new paper on the growing importance of the “Nones”–those who claim no religious affiliation at all but by and large are neither atheists nor agnostics. Rather, the Nones reject institutional religious belief. As Mark puts it, “A better term for them might be religious ‘Independents,’ or the familiar ‘spiritual but not religious.’” The paper considers some of the legal ramifications of “none-ism,” including the relationship between group status and legal protection. Here’s the abstract.

The most important recent development in American religion is the dramatic increase in the number of people who claim no religious affiliation — the rise of the Nones. In this Working Paper, I discuss the social factors that explain the rise of the Nones–demography, politics, family, technology, a distrust of institutions generally–and explain what this development might mean for the definition of religion in American law. I focus on a recent federal appeals court case involving a self-styled spiritual adviser, “Psychic Sophie,” who claimed that following her “inner flow” constituted a religion meriting constitutional and statutory protection. I argue that the case is a close one. Protecting Nones as a religion would promote the important goals of state religious neutrality and personal autonomy. On the other hand, religion has always been understood in terms of community. Indeed, as Tocqueville saw, it is precisely religion’s communal aspect that makes it so important to liberal democracy. Granting Nones the status of a religion would fail to capture this important social benefit.

Boston, “Taking Liberties”

Next month, Random House will publish Taking Liberties: Why Religious Freedom Doesn’t Give You The Right To Tell Other People What To Do by Taking LibertiesRobert Boston.  The publisher’s description follows.

Increasingly, conservative religious groups are using religious liberty as a sword to lash out at others. In this forcefully argued defense of the separation of church and state, Robert Boston makes it clear that the religious freedom guaranteed in the First Amendment is an individual right, the right of personal conscience, not a license allowing religious organizations to discriminate against and control others. The book examines the controversy over birth control, same-sex marriage, religion in public schools, the intersection of faith and politics, and the “war on Christmas,” among other topics. Boston concludes with a series of recommendations for resolving clashes between religious liberty claims and individual rights

Smith, “The Rise and Decline of American Religious Freedom”

9780674724754-lgThis February, Harvard University Press will publish The Rise and Decline of American Religious Freedom by Steven D. Smith (University of San Diego).

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven D. Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.

Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

Ron Colombo on Yesterday’s Cert Grants

At Constitution Daily, Hofstra’s Ron Colombo, a past guest here at CLR Forum, has a helpful essay on the contraception mandate cases on which the Court granted cert yesterday. Ron argues that for-profit corporations like Hobby Lobby, the respondent in one of the cases, have standing to raise a free exercise claim:

Hobby Lobby … is owned and operated by a family deeply devoted to its Christian faith.  The company’s statement of purpose commits it to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”  Unlike so many companies today that put profits over people, Hobby Lobby pledges to “[s]erving [its] employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families.” . . .

So the question becomes:  does the First Amendment provide the protections necessary for businesses such as Hobby Lobby to exist?  Or, to frame things differently:  are individuals free under the U.S. Constitution to follow the dictates of their consciences into the private sector, and to start businesses with practices that are religiously informed?  Businesses around which workers, customers, and investors with shared religious values and beliefs can coalesce?

As should become readily apparent, the recognition of “corporate free exercise rights” ultimately redounds to the protection of individuals.  For it is through religiously expressive corporations that many people wish to live out their faiths.  Can it really be the case that the Constitution effectively consigns these individuals to careers and options only in the world of non-profits?  Is the most significant modern means of harnessing private initiative, the business corporation, somehow carved out from the First Amendment’s religious liberty protections?

You can read Ron’s essay here.

Fowler, Hertzke, Olson, & Dulk, “Religion and Politics in America: Faith, Culture, and Strategic Choices”

Next month, Westview Press will publish a new edition of Religion and Politics in America: Faith, Culture, and Strategic Choices by Robert Fowler (University of Wisconsin-Madison), Allen Hertzke (University of Oklahoma), Laura Olson (Clemson University), and Kevin Dulk (Calvin College). The publisher’s description follows.Religion and Politics in America

Religion and politics are never far from the headlines, but their relationship remains complex and often confusing. In this fifth edition of Religion and Politics in America, the authors offer a lively, accessible, and balanced treatment of religion in American politics. They explore the historical, cultural, and legal contexts that underlie religious political engagement while also highlighting the pragmatic and strategic political realities that religious organizations and people face. Incorporating the best and most up-to-date scholarship, the authors assess the politics of Roman Catholics; evangelical, mainline, and African American Protestants; Jews; Muslims and other conventional and not-so-conventional American religious movements. The author team also examines important subjects concerning religion and its relationship to gender, race/ethnicity, and class. The fifth edition has been revised to include the 2012 elections, in particular Mitt Romney’s candidacy and Mormonism, as well as a fuller assessment of the role of religion in President Obama’s first term. In-depth treatment of core topics, contemporary case studies, and useful focus-study boxes, provides students with a real understanding of how religion and politics relate in practice and makes this fifth edition essential reading for courses in political science, religion, and sociology departments.

“Religion in the Military Worldwide” (Hassner, ed.)

Next month, Cambridge University Press will publish Religion in the Military Worldwide, edited by Ron Hassner (University of California). The publisher’s description follows.Religion in the Military Worldwide

How does religion affect the lives of professional soldiers? How does religion shape militaries, their organization, procedures, and performance? This volume is the first to address these questions by comparing religious symbols and practices in nine countries: Japan, Canada, the United Kingdom, Pakistan, Israel, Iran, India, the United States, and Turkey. The contributors explore how and why soldiers pray, the role of religious rituals prior to battle, the functions that chaplains perform, the effects of religion on recruitment and unit formation, and how militaries grapple with ensuing constitutional dilemmas.

Library of Congress Releases “Constitution Annotated”

To celebrate Constitution Day yesterday, the Library of Congress released a new resource, Constitution Annotated, or, more formally, The Constitution of the United States of America: Analysis and Interpretation. Constitution Annotated contains legal analysis and interpretation of the US Constitution, including the Religion Clauses, based primarily on Supreme Court case law. It is updated through the end of the last Court term. Looks very helpful.

Regan, “The American Constitution and Religion

51oQdDf7byL__SY346_This November, The Catholic University of America Press will publish The American Constitution and Religion by Richard J. Regan. The publisher’s description follows.

The Supreme Court’s decisions concerning the first amendment are hotly debated, and the controversy shows no signs of abating as additional cases come before the court. Adding much-needed historical and philosophical background to the discussion, Richard J. Regan reconsiders some of the most important Supreme Court cases regarding the establishment clause and the free exercise of religion. Governmental aid to church-affiliated elementary schools and colleges; state-sponsored prayer and Bible reading; curriculum that includes creationism; tax exemption of church property; publicly sponsored Christmas displays—these and other notable cases are discussed in Regan’s chapters on the religious establishment clause. On the topic of the free-exercise clause, Regan considers such subjects as the value of religious freedom, as well as the place of religious beliefs in public schooling and government affairs. Important cases concerning conscientious objection to war, regulation of religious organizations and personnel, and western traditions of conscience are also examined. This book, written for students of law, political science, and religion, presents the relevant case law in chronological order. The addition of the historical context and Regan’s philosophical discussion enhances our understanding of these influential cases.

Robinson on Religious Institutions

Zoe Robinson (DePaul) has posted a new piece, What is a Religious Institution?, on SSRN. The abstract follows:

Change in the First Amendment landscape tends towards the incremental, but the Supreme Court’s opinion two terms ago in Hosanna-Tabor v. EEOC — holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations — is better understood as a jurisprudential earthquake. The suddenness and scale of the shift helps to explain the turmoil that has ensued in the lower courts and law journals. And yet, it could be that the biggest aftershock has yet to be felt. The Court left open the most important functional question that exists in scenarios where there will be constitutional winners and losers: what, or who, is a ‘religious institution’ for First Amendment purposes?

The lower federal courts have begun to grapple with the question, but no satisfactory approach exists. Drawing on the historical sources and values animating Hosanna-Tabor and its Religion Clause predecessors, this Article provides a workable framework for distinguishing between those institutions that fall within the scope of the religious institutions category and those that do not. The framework proposed here proceeds from a purposive analysis that turns on which institutions will most often and most effectively use the newly identified and exclusive protections to benefit society as a whole. To this end, the framework favors institutions that have as their purpose (1) protection of individual conscience; (2) protection of group rights; and (3) provision of desirable societal structures.