Tag Archives: Freedom of Association

Canada’s Hobby Lobby Moment?

Supreme Court justicesIn a landmark decision on March 19, the Supreme Court of Canada decided Loyola High School v. Quebec.  At issue in the case was whether Loyola High School, a private Catholic school, should be required to teach Quebec’s “Ethics and Religious Culture” curriculum in a “neutral” manner.  Loyola sought an exemption from the neutrality requirement when teaching the Catholic faith and the ethics portion of the course.  Although the Supreme Court divided 4-3 with respect to the rationale, it unanimously held that Loyola should be granted an exemption.

As Barry Bussey explains below, this case is significant because the Court came very near to granting corporations religious freedom rights (read Bussey’s full article here).  The extent to which corporations enjoy religious freedom protections was, of course, a controversial issue decided last year by the American Supreme Court in Hobby Lobby v. Burwell.  In that case, the American Court held that RFRA grants religious exercise rights to certain for-profit corporations.  It seems that the Canadian Supreme Court may be following the American lead, albeit incrementally. Here is Bussey (footnotes omitted):

While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”

Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”:

The individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.

MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.

Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation. Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual. In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.

McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.

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.

 

Ordon on Freedom of Association in the People’s Republic of Poland and Restrictions on the Catholic Church

Marta Ordon (John Paul II Catholic U. of Lublin, Faculty of Law) has posted Freedom of Association in the People’s Republic of Poland and Its Restriction with Regard to the Roman Catholic Church. The abstract follows.

The desire to associate with others is a manifestation of the social nature of every human being. In modern democracies, the right to associate is regarded as one of the personal liberties. Such democratic states create favorable conditions for the operation of various types of organizations, including those established to pursue religious goals. However, it was not the case in the People’s Republic of Poland (“PRP”), that is, under the communist rule. In a country modelled on the Soviet state and acknowledging the supremacy of the Communist Party over the entire society, all the other actors of the social system were expected to be mere “dummies on the public scene dominated by the Communist Party.” It is worth noting that the political system deployed in Poland after World War II was based on the atheistic Marxist ideology that was hostile to any religion or religious organizations, particularly the Roman Catholic Church. What follows, when pondering upon the issue of freedom of association in the PRP and its restriction with regard to the Catholic Church’s organizations, the ideological aspects must not be disregarded.

As a part of the introduction to the main body of the paper, the author will clarify the difference between the concept of freedom of association as adopted modern democracies and that reinforced in socialist countries, as well as demonstrating the attitude of communist authorities to the Roman Catholic Church and its organizations. Further, legal and factual constraints will be exposed that led to almost a total elimination of the Church-led organizations in communist Poland. The paper primarily explores the Polish literature on the subject and the material gathered in the Polish state and Church archives, since nothing about the subject has yet been published in English.

Campus Free Speech and Sabotage

Many CLR Forum readers will be familiar with Christian Legal Society v. Martinez, the Supreme Court’s 2010 opinion upholding the constitutionality of an “all-comers” policy at the UC-Hastings law school. The all-comers policy required student groups, including religious organizations like CLS, to open their membership to all law students, regardless of belief. By a 5-4 vote, the Court held that this policy was a reasonable, viewpoint-neutral regulation consistent with the First Amendment.

One of the arguments CLS made against the all-comers policy was that the policy made it vulnerable to sabotage by students hostile to its message. Non-Christians could join CLS precisely in order to hijack the organization and subvert its mission. The Court dismissed this concern as fanciful. There was no history of hostile takeovers of campus groups, Justice Ginsburg wrote, and one had to give law students more credit for maturity. Besides, the law school’s code of student conduct prohibited disruption of campus activities; if such things happened, the law school would surely intervene.

Justice Ginsburg’s dismissal of the possibility of student hijacking came to mind as I was reading this post on Rod Dreher’s blog. Dreher describes a recent forum on marriage organized by a student group at Columbia University. The forum was open to everyone on campus and featured speakers with traditional views, including Sherif Girgis, Lynn Wardle, and Bradford Wilcox. Even though  the forum was sold out, the room was half empty. Why? Campus Democrats had hoarded tickets, apparently in an effort to prevent people from attending and hearing the speakers. Some campus Democrats did attend briefly to hold up protest signs and walk out. Here’s one student’s view of the situation, from the Columbia student paper:

From the start, the CU Democrats seemed misinformed—if not intent on spreading misinformation—about the purpose of the forum. It was not, as some that day said, an “anti-gay marriage tirade,” but a debate on the status of the modern family. . . . [T]he issue of the future of the family is a conversation that the CU Democrats seem unwilling to allow to take place, much less to take part in, despite their physical presence.

To be sure, hoarding tickets to a one-day conference is not the same thing as taking over a group. And, depending on your view of things, you might think of what the Columbia Democrats did as a harmless stunt or even a brave gesture for equality. Still, the campus Democrats used an all-comers policy to disrupt an event sponsored by another student group and limit that group’s message from reaching its intended audience. To me, this suggests that the possibility of hostile takeovers is not as far-fetched as the Martinez Court believed.

Podcast on “First Amendment Institutions”

Paul Horwitz and I discuss his book in this podcast, the latest in the Federalist Society’s worthwhile series of conversations on new books.

Our written exchange is here.

Conversations: Paul Horwitz

I had the pleasure and good fortune of sitting down with my good friend, Paul Horwitz (Alabama), a Paul Horwitzcouple of  weeks ago to talk with him a little about his superb new book, First Amendment Institutions (2013), under the auspices of a Federalist Society program that considers interesting and important new books.  I will post the podcast of that interview when it is ready.  But Paul also generously agreed to answer some written questions about the book, which ranges over all manner of First Amendment subjects, including, of course law and religion, for our ‘Conversations’ feature here at CLR Forum.

Q: The book, as its title indicates, is concerned with examining First Amendment disputes from an institutional point of view.  You define institutions as organizations comprised of individuals bound together by some common purpose to achieve certain objectives.  Why are institutions particularly important phenomena to study when it comes to the First Amendment?  After all, when one thinks of personal expression or religious practice, one does not think immediately of institutions.  Indeed, the paradigmatic case of speech or religious exercise is, for many, not about institutional or organizational rights but about individual rights.

A: I don’t think they’re uniquely important phenomena to study when it First Amendment Institutionscomes to the First Amendment. But I absolutely believe that they’re important phenomena to study, for at least three reasons. 1) A good deal more individual speech is formed or influenced by or within those institutions than the paradigm case may acknowledge. 2) Much important speech or activity takes place within those institutions. 3) These institutions often play an important structural role in public discourse.

Q: One of the major methodological issues that you raise – applicable both to the First Amendment and, you suggest, to all of law – is the law’s tendency toward acontexualism.  You say, for example, that law is indifferent to real world context and is instead only interest in analysis according to concepts of its own making.  Judges think about the cases that come before them in distinctively legal categories.  Could you say more about this and how it pertains specifically to the sorts of issues that you tackle in FAI?  More than this, can you explain why it is an inapt way to think about such cases?

A: Of course, there are lots of reasons why it is not a bad thing for judges to think acontextuality. Most of them involve what we think of as rule of law values, while others have to do with reasons of the particular institutional competences of the judiciary. That said, like any reasoning device or habit of mind, acontextuality can end up obscuring or missing important facts, contexts, and details. The point of acontextuality, in part, is to think only about morally relevant differences or similarities between things; but too acontextual a view can end up missing some of those morally relevant distinctions, especially where First Amendment institutions are concerned.

Q: A different question about acontextuality.  Sometimes it seems that what you describe as the snare of acontextuality is just as much a debate about whether facts or doctrine should rule as it is a fight about which facts are the (morally) salient ones.  For example, in your discussion of Arkansas Educational Television Comm’n v. Forbes, you say that the 8th Circuit got hung up in trying to slot the commission as a public entity, and so it did not see that it was simply exercising its journalistic discretion like a private broadcaster might.  But one might recharacterize what the court did as valuing certain types of facts (the issue of the commission’s private status) MORE than other sorts of factors.  Even though the Supreme Court reversed, isn’t this really a fight about which facts are relevant, more than a fight about whether facts or legal categories matter.

A: This is a fair pushback, I think. But I suppose I would say that cases like Forbes were more about finding what the court considered legal categories than about considering facts or context as such. Certainly, however, there is a relationship between legal categories and morally relevant facts. The question is whether the fixation on legal categories can end up failing to see other kinds of relevant categories.

Q: A question about the relationship of institutionalism and acontextualism. Can one be a formalist about institutional categories?  It seems that Professor Fred Schauer’s approach, which is important for your own, espouses something like this position.  Is there a necessary connection between a focus on institutions and a contextual method?

Continue reading

Tennessee Governor to Veto Vanderbilt Bill

Tennessee Governor Bill Haslam has announced that he will veto the bill, discussed here, that would ban “all-comers” policies, such as the one at Vanderbilt University, that require student groups to open their leaderships to all students, including students who reject the groups’ core beliefs. Although he disapproves such policies, Haslam said, he thinks it’s “inappropriate for government to mandate the policies of a private institution.”

State Legislature Moves Against Vanderbilt’s “All-Comers” Policy for Student Groups

Last night, by comfortable margins, the Tennessee legislature passed a bill prohibiting Vanderbilt University’s “all-comers” policy for student groups. The policy, which requires that student groups open leadership positions to all Vanderbilt students, even students who disagree with the groups’ core beliefs, has sparked a dispute between the university and some student religious organizations, which argue that the policy effectively dilutes their religious identity. The bill initially banned all-comers policies only at state universities, but an amendment extended the bill’s  coverage to private institutions that receive more than $24 million in state subsidies — which just happens to be the amount Tennessee gives Vanderbilt. The bill does not actually cut off  funding, for the moment, but sponsors threaten to do so in future if Vanderbilt does not change its policy. The bill now goes to Governor Bill Haslam for signature.

A couple of terms ago, in CLS v. Martinez, the Supreme Court held that a similar all-comers policy at the University of California-Hastings was constitutional. As I’ve argued before, though, even if an all-comers policy is constitutional, it’s very misguided. The point of campus diversity is to allow the expression of various viewpoints. It’s hard to see how a group can express a viewpoint if it cannot choose leaders who share its beliefs.

Cimino on Campus Citizenship and Associational Freedom

Chapin Cimino (Drexel University – Earle Mack School of Law) has posted Campus Citizenship and Associational Freedom: An Aristotelian Take on the Nondiscrimination Puzzle. The abstract follows.

Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate — a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university anti-discrimination policies, which can cost them official campus recognition. Thus, in the name of one important value, schools trample on another: campus citizenship. Both nondiscrimination and campus citizenship are values of equality.

At this moment, whose notion of equality is to prevail? Is it the university’s, taking the form of a blanket nondiscrimination policy? Or is it the student group’s, taking the form of the desire to maintain both associational freedom and campus citizenship?

Current First Amendment doctrine is ill-equipped to resolve the tension between these competing values, or “ends.” It is ill-equipped because any traditional First Amendment test is written to consider only one “end” — the end of the regulator. This was true prior to the Supreme Court’s June 2010 decision in Christian Legal Society v. Martinez. Continue reading

Inazu, “Liberty’s Refuge”

My friend John Inazu (Washington University St. Louis) has published Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale 2011).  Warm congratulations to John for this wonderful work on a (before his book) understudied but vitally important liberty, which sometimes is teamed with religious liberty in constitutional cases.  The publisher’s description follows.

This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women’s suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions of our constitutional tradition.

UPDATE: John kindly informs me that he has made the entire text of his book available here for free.  You now have no excuse not to read it!