Tag Archives: Freedom of Conscience

ICLARS Panel: Is Religion Special?

Along with my St. John’s colleague, Marc DeGirolami, and other law and religion scholars from around the world, I spent part of last week at the biannual ICLARS Conference, hosted this year at William and Mary and the University of Virginia. Kudos and thanks to the indefatigable Cole Durham and other conference organizers for an exceptionally helpful  and fun event!

I spoke at Friday’s afternoon session, on a panel, “Is Religion Special?”, moderated by Edward Gaffney of Valparaiso. My co-panelists were Barry Bussey of the Canadian Council of Christian Charities and Micah Schwartzman of the University of Virginia. Bussey presented a paper titled, “Does Religion Merit Special Protection in the Law? (Within the Canadian Legal Context).” Early Canadian Supreme Court cases stressed the country’s Christian heritage, he explained. Over time, however, the Court moved to a concern with religion in general. Now, equality often trumps freedom of religion in the Canadian case law–religious freedom is often the “loser.” I presented my working project on the rise of the Nones–the group of people who claim no religious affiliation–and what it might mean for the definition of religion in American law. As an example, I used the recent “Psychic Sophie” case, in which the Fourth Circuit held that “following one’s inner flow” does not qualify as a religion meriting constitutional and statutory protection. Schwartzman closed the panel with his draft, “Religion as a Legal Proxy.” He addressed the argument that, even if religion as such doesn’t merit special legal protection, religion is a proxy for other comprehensive values that do. Schwartzman is skeptical of this argument. For one thing, he said, interests besides religion–conscience, for example–might also serve as effective proxies for other comprehensive values, without raising religion’s particular concerns.

Guinness, “The Global Public Square”

This September, InterVarsity Press will publish The Global Public Square, by Os Guinness. The publisher’s description follows.

How do we live with our deepest differences?The Global Public Square

In a world torn by religious conflict, the threats to human dignity are terrifyingly real. Some societies face harsh government repression and brutal sectarian violence, while others are divided by bitter conflicts over religion’s place in public life. Is there any hope for living together peacefully?

Os Guinness argues that the way forward for the world lies in promoting freedom of religion and belief for people of all faiths and none. He sets out a vision of a civil and cosmopolitan global public square, and how it can be established by championing the freedom of the soul—the inviolable freedom of thought, conscience and religion. In particular he calls for leadership that has the courage to act on behalf of the common good.

Far from utopian, this constructive vision charts a course for the future of the world. Soul freedom is not only a shining ideal but a dire necessity and an eminently practical solution to the predicaments of our time. We can indeed maximize freedom and justice and learn to negotiate deep differences in public life. For a world desperate for hope at a critical juncture of human history, here is a way forward, for the good of all.

Amicus Brief of Constitutional Law Scholars in Stormans v. Salecky

I am happy to have joined an amicus brief together with several other constitutional law professors –but written by Doug Laycock and some excellent lawyers in Austin, Texas — in Stormans v. Salecky, a case currently being litigated in the Western District of Washington and the Ninth Circuit.  The case concerns the free exercise rights of several pharmacists at small pharmacies who have religious conscience objections to dispensing Plan B emergency contraception, and who are being compelled to do so by the Washington State Board of Pharmacy’s regulations requiring all pharmacies to dispense certain drugs, without exception.  I am particularly keen on the description in the brief of Smith and Lukumi-Babalu as representing a kind of range of general applicability — the idea being that many cases will fall somewhere between those two points.  That’s nifty, because one often sees Lukumi instead described as an “exception” to the Smith “rule,” which has different connotations.  You can read more about the case in Judge Leighton’s most recent opinion.

“Pussy Riot,” Russian Feminist Punk Band, to Remain in Jail

I don’t know how many CLR Forum readers are following this story, but it’s a major news item in Russia and has drawn attention in the international human rights community as well. Last February, in a protest against Vladimir Putin, a Russian feminist punk band called “Pussy Riot” (above) stormed the altar at the Cathedral of Christ the Savior in Moscow and performed performed a”punk prayer” called “Mother of God, Cast Putin Out.” You can find the video on the internet; it’s pretty juvenile. Authorities arrested three members of the band for the crime of “hooliganism,” which carries a sentence of seven  years. They have been in jail since March. A Russian court today extended their pretrial detention for another six months, to January 2013. The imprisonment and prosecution has become a cause célèbre in Russia, pitting the Orthodox Church hierarchy, which resents the cathedral protest as a sacrilege, against liberals, who resent the Orthodox Church’s support for Putin and see the threatened punishment as arbitrary and extreme. Amnesty International has declared the members of Pussy Riot “prisoners of conscience.” Russians themselves are divided about the case. In a recent poll of Muscovites, half said they opposed the prosecution, but 36% approved.

The Anniversary of the Virginia Declaration of Rights

On this date in 1776, the Virginia Declaration of Rights was adopted by the Virginia legislature, preceding the Virginia State Constitution by a few days.  The portion dealing with religious liberty was drafted by James Madison and is generally considered to be an important antecedent to the federal constitutional right of free exercise of religion (adopted in 1791).  Here is the text of Article XVI:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his “first allegiance was to the will of God” and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently “attached to the principles of the Constitution.”  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you’re liable to walk right by this unimposing gem of a watercolor. 

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Senate Tables Conscience Amendment

The Senate earlier today debated an amendment to a transportation bill introduced by Senator Roy Blunt of Missouri which would allow a religious employer to opt out of any health care decision for any religious reason of conscience.  The amendment was quite broad in scope, and it was tabled by a vote of 51-48.

Garry Wills Puts the “Con” in Conscience

Here is a dyspeptic piece by Garry Wills which gets numerous things wrong about the nature of the conscience claim being asserted in response to the HHS mandate.  Under the heading, “The Phony Religious Liberty Argument,” Wills says:

The bishops’ opposition to contraception is not an argument for a “conscience exemption.” It is a way of imposing Catholic requirements on non-Catholics. This is religious dictatorship, not religious freedom.

Contraception is not even a religious matter. Nowhere in Scripture or the Creed is it forbidden. Catholic authorities themselves say it is a matter of “natural law,” over which natural reason is the arbiter—and natural reason, even for Catholics, has long rejected the idea that contraception is evil. More of that later; what matters here is that contraception is legal, ordinary, and accepted even by most Catholics.

The confusions in these short paragraphs are astonishing, particularly for a writer of Wills’s deserved reputation.  First, whether “most Catholics,” including Wills, “accept[]” contraception is completely irrelevant.  The issue is not what Wills, or any other dissident Catholic, thinks ordinary or accepts.  The issue is what those with authority to speak on behalf of the Catholic Church believe.  And we have strong evidence that they believe that paying for contraception and abortifacient services is anathema.  The Church is a hierarchical institution, and so it matters who has authority to speak on its behalf to the agents of the state.  Much as it may distress him, that’s not Wills.

Second, to say that opposition to the mandate represents “religious dictatorship” may sound good, but the substance of the comment is wrong.  No one — least of all “the bishops” — is preventing anyone from obtaining whatever products they like.  No one is monitoring anyone, no one is tracking the way that employees use their money, no one is stopping anyone else from using their money as they like.  The issue is not “dictatorship” — religious or secular — and this sort of overheated rhetoric is quite silly.  The issue is whether the state can compel the religious employer to pay for products for its employees as to which it objects in conscience (I am bracketing the question of what President Obama’s February 10 announcement does).  Obviously there are disagreements about that question.  But the resolution of that issue, one way or the other, is not evidence of “dictatorship.”  It’s something far short of that, but something we ought to attend to nevertheless.

Oversight Committee Holds Hearing on HHS Contraception Mandate

Congress’s Committee on Oversight and Government Reform is currently holding a hearing on the Administration’s HHS contraception and abortifacient mandate.  The title of the hearing is, “Lines Crossed: Separation of Church and State.  Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?”  The hearing is being live-streamed at the attached link.

An Uncertain Development in the HHS Mandate

As Mark reports below, President Obama announced this afternoon that the Administration is reversing the decision to require religious employers to pay for health plans which cover contraceptives and abortifacients.  The insurers will instead be required to cover them for free.  [UPDATE: I have amended the title of this post and stricken out the material above because at this point, given the first question that I raise below, I am deeply uncertain exactly what this change means.  More soon.]  There remains the issue of what the religious institutions will be required to tell their employees about the availability of these products and services.

ADDENDUM: Some additional questions beyond the issue of what religious institutions will need to say to their employees about the availability of contraceptives through their insurer: (1) Won’t the insurer simply pass the cost of the products and services which it is being compelled provide onto the insureds, including the religious institutions?; (2) What happens when a religious institution is self-insured?; (3) Exactly who qualifies for exemption under the rule?