Tag Archives: Religious Accommodation

Religious Indifferents

Image from Patheos

The most important recent development in American religion is the rise of the “Nones,” the increasing number of Americans–it may now be 20% of all adults and 30% of young people–who tell pollsters that they have no religious affiliation. Perhaps surprisingly, most Nones are believers. They reject organized religion, not faith. In fact, the Nones overlap greatly with another much-discussed category of Americans, the “Spiritual But Not Religious,” or SBNRs.

Even the SBNR label doesn’t completely capture things. It’s necessary to dig a little deeper. At the Oxford University Press blog, theologian Linda Mercadante, author of the recently released Belief Without Borders, has a helpful guide to the various kinds of  SBNRs in America today. Mercadante has interviewed hundreds of SBNRs over a five-year period, she reports, and a very large number are best described as “casual” SBNRs. For them,

religious and spiritual practices are generally approached on an “as-needed” basis and discarded or changed when no longer necessary. Spirituality is not felt to be the organizing center of their lives. Many of the “casuals”—especially younger ones—had little or no religious exposure either as children or adults.

In other words, it would be wrong to understand SBNRs or Nones principally as “seekers.” Nor are they hostile to religion. They just don’t care much about it. Better, perhaps, to call these people something else–something more descriptive. “Religious Indifferents” is a phrase that comes to mind.

If we really are looking at a significant and growing percentage of Religious Indifferents in America, the implications for religious liberty could be profound. Consider the politics of religious accommodations. A minority religion that seeks an accommodation in the legislative process needs allies, people who understand why it is important to honor the minority’s religious convictions. Sometimes, the best friends a minority can have are adherents of other religions, who see it in their interest to lobby on behalf of the minority. By banding together, religions can achieve results they might not be able to achieve on their own. This dynamic, as well as the traditional American commitment to religious liberty as a fundamental right, explains how the Religious Freedom Restoration Act passed in 1993.

Large numbers of Religious Indifferents would change this dynamic. First, Indifferents are unlikely to seek accommodations for themselves. If you don’t care very much about religion, you’re not likely to oppose state action for religious reasons. Second, and more important, Indifferents will not likely feel much affinity for believers who do have religious objections to government policy. If you don’t take religion seriously, yourself, you’re not likely to understand why others do. What’s the big deal, anyway?

Some observers, like Rodney Stark at Baylor, think the numbers of Nones/SBNRs are exaggerated. And many younger Americans who are Indifferents now will no doubt join religions as they get older. If Mercadante is correct, though, the politics of religion in America could be in for a significant change.  

Does RFRA’s Least Restrictive Means Test Violate the Constitution?

Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges–doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.

Recall the theory: religious accommodations are unconstitutional if they shift “significant burdens” onto a “focused and identifiable class of third parties.” For the moment, leave aside the “focused and identifiable” component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available–that means which least burdens the religious claimant–to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government’s case for the contraception mandate is weakest.

Suppose one accepts the claim that any “significant” burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a “focused and identifiable” group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable–in some cases verging on certain–that the means chosen will impose “significant” burdens on third parties.

Take these cases.

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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.

Religion without God

Religion without God is the late Ronald Dworkin’s last work, published posthumously in September. It’s a short book; a publisher’s note explains that Dworkin planned to expand the work greatly before he fell ill. Still, the book is important. Not that it says anything especially new. As far as I can tell, in fact, the book repeats familiar, even ancient, objections to the idea of a personal God and proposes a legal definition of religion that is decades old. Religion without God is important, rather, because it reflects the worldview of  a celebrated liberal philosopher sympathetic to religion but unable to believe in God, and because it reflects an increasingly important strategy in the Left’s battle to minimize protection for traditional religion.

Religion without God has two main points, one about the nature of religion and the other about religious freedom. In the first part of the book, Dworkin argues that religion, properly understood, does not require a belief in God. Religion requires only a belief in objective meaning and a sense of wonder at the sublime quality of the universe. Many atheists believe in objective meaning and view the universe with a sense of wonder, Dworkin writes, and are thus, in their way, “religious.” Dworkin hopes this insight will dampen the conflict between atheists and believers in contemporary Western culture. Both sides agree on the essential things, he argues; disagreement on the existence of God is only a minor detail.

Take objective moral values, for instance. Many theists believe moral values depend on the existence of a personal God. If God had not told us, or implanted the knowledge in us, we would not know what is right and what is wrong. This is logically incorrect, Dworkin says. Objective values must exist independently of God’s will. Otherwise, God could make conduct ethical simply by commanding it, and that would be entirely arbitrary. What if God ordered you to murder your family members? Would that make the murders right? No, the murders would be wrong, whatever God told you. So God is superfluous to moral reasoning–no more than a possibly helpful guide. Once they recognize this, Dworkin argues, believers will see that their differences with atheists–at least with “religious atheists”–are insignificant.   

This argument tracks the famous Euthyphro dilemma, to which Dworkin alludes at the very end of his book. Christianity–I don’t know about other traditions–has an answer to this dilemma, though Dworkin dismisses it rather summarily. The Christian answer is this: the Euthyphro dilemma assumes that God is a being like any other in the universe, subject to the same logical disconnect between fact and value. But God, in Christian understanding, is not like that. Unlike human beings, God is not born into a preexisting universe. He is eternal. As Peter Leithart writes, no gap exists between God and objective reality, including objective moral reality. In the Christian conception, God is objective moral reality.

This is all pretty complicated. But one doesn’t have to follow the entire argument to recognize that theists are unlikely to be persuaded that a belief in God is optional–and that atheists are unlikely to be persuaded that their disagreement with theists is only minor. Dworkin himself recognizes that his irenic project is likely to fail, which gives Religion without God a melancholy tone. He apparently believed it important to try to narrow the conceptual gap between theism and atheism, however, in order to advance a legal project: expanding the legal definition of religion to include non-theistic, ethical convictions.

Here’s the argument. If religion is “deeper” than conventional theism, as Dworkin insists, protection for religious exercise must, in fairness, extend to non-theistic belief systems as well. In fact, protection should extend to any passionately held ethical conviction. This observation isn’t new. In the Draft Act cases decades ago, the Supreme Court indicated that religion could include deeply-held, non-theistic beliefs. But extending “religion” in this way creates a serious practical problem. In our legal system, religion enjoys a specially-protected status. In many instances, government accommodates citizens’ religious beliefs by granting exemptions from otherwise applicable legal requirements. If religion means all deeply-held ethical convictions, how can the state possibly accommodate it? Chaos would result.

Here Dworkin makes his final move. Because of the practical impossibility of accommodating religion, the state should not bother to try. We should abandon “the idea of a special right to religious freedom with its high hurdle of protection,” he writes, in favor of a more general right to “ethical independence.” The payoff? “If we deny a special right to free exercise of religious practice, and rely only on the general right to ethical independence, then religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them.” Religion, in other words, will take a back seat to progressive politics. A general right of ethical independence, he writes, would restrict public religious displays, unless the displays were genuinely drained of all religious meaning, and would mandate “the liberal position” on same-sex marriage, abortion, and gender equality in marriage.

Dworkin’s definition of religion thus seems tendentious, a way to dilute religion so as to minimize the potential for conflict with the progressive state. This is not surprising. Traditional religion opposes many of the Left’s priorities; for the Left to succeed, it must continue to marginalize traditional religion. And Dworkin’s argument that religion as such does not merit special protection is very much in the air today. Prominent law professors like Brian Leiter and Micah Schwartzman make versions of this argument, for example. In the Hosanna-Tabor case, the Obama Administration maintained that religious freedom, as such, had nothing to do with a church’s decision to fire its minister.

So far, courts appear to be rejecting the religion-isn’t-special argument (though, it must be said, the Court’s 1990 decision in Employment Division v. Smith, the peyote case, gives the argument rather more traction than it should possess). In Hosanna-Tabor, for example, the Supreme Court rejected the Obama Administration’s argument by a vote of 9-0. You never know how future courts will see things, though. Dworkin’s last book suggests that the fight over the special status of religion in American law is only beginning.

“Prohibition, Religious Freedom, and Human Rights” (Labate & Cavnar, eds.)

bookNext month, Springer will publish Prohibition, Religious Freedom, and Human Rights: Regulating Traditional Drug Use edited by Beatriz Caluby Labate (Center for Economic Research and Education, Mexico) and Clancy Cavnar (John F. Kennedy University). The publisher’s description follows.

This book addresses the use and regulation of traditional drugs such as peyote, ayahuasca, coca leaf, cannabis, khat and Salvia divinorum. The uses of these substances can often be found at the intersection of diverse areas of life, including politics, medicine, shamanism, religion, aesthetics, knowledge transmission, socialization, and celebration. The collection analyzes how some of these psychoactive plants have been progressively incorporated and regulated in developed Western societies by both national legislation and by the United Nations Drug Conventions. It focuses mainly, but not only, on the debates in court cases around the world involving the claim of religious use and the legal definitions of “religion.” It further touches upon issues of human rights and cognitive liberty as they relate to the consumption of drugs. While this collection emphasizes certain uses of psychoactive substances in different cultures and historical periods, it is also useful for thinking about the consumption of drugs in general in contemporary societies. The cultural and informal controls discussed here represent alternatives to the current merely prohibitionist policies, which are linked to the spread of illicit and violent markets. By addressing the disputes involved in the regulation of traditional drug use, this volume reflects on notions such as origin, place, authenticity, and tradition, thereby relating drug policy to broader social science debates.

Abercrombie & Fitch Settles Headscarf Lawsuit

An update on the California headscarf litigation I discussed earlier this month. Abercrombie & Fitch has settled the lawsuit and agreed to allow Muslim employees to wear headscarves while on the job. A federal district court in California recently ruled that A&F’s refusal to allow headscarves on the job violated US employment discrimination law. A&F has agreed to pay the plaintiff in the case, Hani Khan, $48,000 and unspecified attorneys fees. The Guardian has the full story, as well as information about other headscarf litigation against A&F.

Rienzi on the Abercrombie & Fitch Case

At the Becket Fund’s blog, Mark Rienzi has an interesting analysis of the Abercrombie & Fitch case I discussed last week:

The decision is important for two reasons.  First, it is a reminder that, in a religiously diverse country, people of different faiths will have different needs.  Some workers need to wear headscarves, some need Saturdays off, some cannot assist with abortions or capital punishment.  The sensible response to most of these differences is to accommodate them—to recognize that our society is filled with wonderful differences, and to find ways to work around those differences without kicking people out of their jobs.

The case is also important for arguments the Administration chose not to make.  It did not argue that Ms. Khan had forfeited her religious freedom rights when she voluntarily went to work for a profit-making company.  It did not say that she would only have religious liberty if she cabined her job search to Muslim religious organizations.  It did not say that because she was earning money in the commercial marketplace she had somehow forfeited her right to conduct herself in accordance with her religion.

Read the whole thing.

Shah on Religious Accommodations

Prakash Shah (Queen Mary, University of London School of Law) has posted Asking About Reasonable Accommodation in the Context of Religious Universalism. The abstract follows.

Interviews conducted with leading actors in England asking a range of questions about religious diversity and the legal framework and, in particular, about reasonable accommodation, helped identify a number of areas of concern. There was some doubt about whether specific legal provision should be brought in to guarantee reasonable accommodation. However, there was broad support for having the principle adopted in the practice of employers, while some preferred the current informality rather than the principle being enforced through litigation. None of the respondents came up with illustrations outside of Judaism, Christianity or Islam. The results are consistent with recent critical studies showing that the assumption in social sciences that religion is a universal has been imported from theology. Religion-based questions only pick out certain phenomena specific to some cultures and an inevitable skew is created when asking such questions because they only make sense within an Abrahamic religious framework. While enabling the identification of some aspects of culture considered to merit reasonable accommodation on grounds of religion, the results also pose questions about the adequacy of current, standard research methodologies which assume that religion is a universal.

Mooney on the Hajj and Reasonable Accommodation Under Title VII

Matthew P. Mooney (Student at Duke U. School of Law) has posted Between a Stone and a Hard Place: How the Hajj Can Restore the Spirit of Reasonable Accommodation to Title VII. The abstract follows.

Although section 701(j) of the Civil Rights Act of 1964 requires that employers reasonably accommodate their employees’ religious practices and beliefs, many commentators acknowledge that the spirit of reasonable accommodation has not been realized because courts have drastically limited the scope of employers’ duty. This may be especially true for Muslims, who, according to a 2012 study, are roughly half as likely to prevail in free-exercise and religious-accommodation lawsuits as are non-Muslim claimants. One of the central tenets of Islam, the hajj, poses significant challenges for Muslim employees seeking accommodation under Title VII. Because accommodating the hajj will almost always impose more than a de minimis cost on employers, a court is unlikely to find that Title VII requires employers to accommodate a Muslim employee’s decision to complete the pilgrimage.

This Note attempts to articulate a new method for expanding Title VII’s protection of employees’ religious beliefs and practices. Specifically, this Note argues that increased involvement by the Equal Employment Opportunity Commission and the Department of Justice in hajj-accommodation cases offers a promising approach to developing a more balanced accommodation doctrine, or at least to  realigning the scales so that they are not tilted so heavily in favor of employers. Despite clear precedent limiting an employer’s duty to accommodate, increased intervention by the federal government in Title VII hajj-accommodation cases has the potential to shift the conception of reasonable accommodation. Though the government must pick and choose the cases in which to intervene, hajj-accommodation cases present an opportunity to further the dual purposes of the government’s Title VII enforcement authority to implement the public interest as well as to bring about more effective enforcement of private rights. Intervention can restore the spirit of accommodation to section 701(j) and give employers more of an incentive to accommodate their employees’ religious obligations.

Breda on Accommodation of Sharia Law in Italy

Vito Breda (Cardiff Law School & Australian National University) has posted Sharia Law in Catholic Italy: A Non-Agnostic Model of Accommodation. The abstract follows.

The Italian Constitution and its interpretation by the Constitutional Court have led to the development of a model of accommodation of religious practices that seeks to balance a commitment to promoting religious pluralism whilst, at the same time, maintaining the neutrality of state institutions. What is distinctive about this quasi-neutral constitutional stance is the commitment to reducing the discrepancies between the legal and religious effects of key life decisions (e.g. the decision to get married). I call this stance positive secularism. In this essay, I would like to show that, thus far, positive secularism has been particularly effective in accommodating the demands of Muslim immigrants (Pacini 2001). For instance, some aspects of the Sharia law, such as marriage (including some effects of polygamous marriage) and divorce (including some effects of unilateral divorce), are already recognized by Italian international private law. The second stage for the accommodation of Sharia law in Italy is likely to be the recognition of Islam as one of Italy’s official religions. Recognition will increase the level of the Islamic communities’ autonomy and will allow for the automatic recognition of some aspects of Sharia law. In February 2010, the Italian government established the Committee for Islam, composed of representatives of Italian Islamic communities, within the Ministry of Interior Affairs. In the recent past, these types of dialogues between institutions and religious representatives have been the proxy for the official recognition of nine faiths in Italy. Waldensian Evangelical Church, the World Assemblies of God Fellowship, the Evangelical Baptist Church, the Lutheran Baptist Church, the Apostolic Church, the Church of Jesus Christ of the Latter-Day Saints, the Adventist Church, the Greek Orthodox Archdiocese of Italy, Hebrew Communities of Italy. The chapter is divided into two sections, which is preceded by an introduction, and followed by a conclusion. The first section will discuss the judicial introduction of Sharia law via the procedure of Italian international law. The second section will explain the advantages of the recognition process and the reasons that have prevented Islamic communities from benefiting from it.