Tag Archives: Religious Liberty

Panel: “The Present & Future of Religious Freedom” (Chicago, Dec. 10)

The Lumen Christi Institute will host a panel, “The Present and Future of Religious Freedom,” on December 10 in Chicago:

Recent controversy over the HHS contraceptive mandate and the participation of faith-based organizations in federal grant programs has raised questions about religious freedom in the American legal and political systems. This discussion will consider the perceived conflict between civil rights and religious freedom and the roles of Congress, the judiciary, and administrative agencies for how religious freedom will be understood, applied, and protected in the future.

The panelists are Noel Francisco of Jones Day and Michael Moreland of Villanova Law School. Details are here.



L-R: DeGirolami, Sullivan, Movsesian

Thanks again to Rick Garnett, Phillip Munoz, and the hardworking staff at the Notre Dame Law Review for hosting us at the conference on religious liberty last week. It was a wonderful event — substantive, friendly, and engaging. We’ll link to the video when it’s available. Papers will eventually appear in a forthcoming issue of the Law Review. Meanwhile, here’s a shot of three happy CLR types, Marc DeGirolami, Judge Richard Sullivan, and me, just before our panel on religion in the modern world.

CLR Faculty at Notre Dame This Week

Later this week, Marc DeGirolami and I will be presenting papers at a symposium at Notre Dame University. The symposium, sponsored by the Notre Dame Law Review, commemorates the 50th anniversary of Dignitatis Humanae, Vatican II’s declaration on religious liberty:

The Symposium will begin with an address from Bishop Daniel E. Flores on Thursday, November 5. Bishop Flores currently serves as the Bishop of Brownsville, Texas.

The Symposium panelists will present their works on Friday, November 6.  Panelists include Professors Thomas Berg of the University of St. Thomas School of Law, Paul Horwitz of the University of Alabama School of Law, Christopher Lund of Wayne State University Law School, Mark Movsesian and Marc DeGirolami of St. John’s University School of Law, Brett Scharffs of Brigham Young University Law School, Steven Smith of the University of San Diego School of Law, Anna Su of the University of Toronto Faculty of Law, and Richard Garnett and Phillip Muñoz of Notre Dame Law School.  The panels will be moderated by Judge Richard Sullivan of the Southern District of New York.

The Symposium will feature a keynote address from John H. Garvey, President of The Catholic University of America.

Papers will appear in a forthcoming issue of the Notre Dame Law Review. Details about the symposium are here. CLR Forum readers, please stop by and say hello!

Writeup of This Week’s Event on Religious Liberty

From the St. John’s Law School webpage, here’s a nice writeup of Tuesday’s event on religious liberty in Supreme Court jurisprudence. Thanks to Board member Richard Sullivan for participating and Board member Mary Kay Vyskocil for hosting. And to everyone who attended!

Event Tonight: Religious Liberty and the Supreme Court

Just a reminder that the Center will host a panel discussion in midtown Manhattan tonight on religious liberty at the US Supreme Court. The discussants will be myself and Judge Richard Sullivan of the Southern District of New York. Details and RSVP info are here. CLR Forum readers, please stop by and say hello!

Huleatt on Obergefell

John Huleatt, an alumnus of St. John’s Law School and General Counsel for the Bruderhof Community, a Christian group with roots in the Anabaptist tradition, has posted an interesting reflection on the Obergefell decision and the implications for religious liberty. Here’s a sample:

Accordingly, the state exceeds its legitimate authority when it lends its authoritarian power to either side in this debate. Protecting gays from discrimination in nonreligious matters is an appropriate concern for government and believers alike. But if the government requires believers to act in violation of their conscience in the name of so-called anti-discrimination, it is going too far. The United States, more than most other countries, has a long history of successfully accommodating competing rights. For this to continue, the state and proponents of gay marriage need to understand that no compromise for believers is possible where conscience is at stake. Thus free exercise of religion must be protected just as much as other civil rights. Religious dissent does not lose protection merely by being labeled discrimination. If the American public and the executive, legislative, and judicial branches of our government fail to recognize this, many people who are (in Justice Kennedy’s words) “reasonable and sincere” will have no choice but to resort to civil disobedience.

You can read Huleatt’s essay here.

Invocatin’ Satan

The 2014 Supreme Court case Town of Greece v. Galloway is being used to permit Satanists to give invocations at public events. As this article explains, the case stands broadly for the proposition that invocations at public events such as town council meetings must be open to all faiths within the community, and the municipality cannot discriminate among them.

This being America, one person founded a “First Pompano Beach Church of Satan” and petitioned a number of towns to be included in the invocation list. Some have done away with invocation entirely to avoid having the Satanists there. Some have put him on a (long) waiting list but at least one is permitting him to speak. A self-described “minion of Satan,” the article describes his project as:

“Part political commentary, part performance art, Stevens’ “Satan or Silence Project” has presented 11 South Florida municipalities with some stark choices: Either drop the invocation that opens city commission meetings, or allow him, a self-described ‘minion of Satan,’ to lead a prayer to the prince of darkness.”

As a threshold matter, this may not even pass muster under Galloway, which was concerned about religious communities that actually existed within a political boundary being excluded.  Here the lack of a congregation or physical presence in some of the towns targeted might be enough to justify an exclusion.  But as silly as it may seem, this controversy raises some interesting questions about the connections between religion and society. From the article, the “church” seems more of a stunt than an actual belief system, and seems designed to criticize the notion of public prayer at all (the “minion” notes his invocations might “include beer, nachos and a mariachi band.”) But the case law is somewhat consistent that the sincerity of beliefs cannot be questioned by a court, though the evidence here seems pretty clear. But let’s assume he is a sincere believer in the Tempter.

Should the invocation nevertheless be allowed? That depends on what we want to get out of such an invocation. Christian invocations of this type typically ask for strength and wisdom in public deliberation, and guidance for judgment to do what is in the common good. But not all invocations would be appropriate – for example, an explicit call for unbelievers to convert. As the deputy mayor of Boca Raton says in the article, such invocations set “the proper tone” for deliberations. A mariachi band and an invocation to a being typically associated with deception and cruelty, would seem to be inappropriate.

An invocation then, is not merely ceremonial or rhetorical window dressing. An invocation, therefore, does have a civic purpose and municipalities may have a basis for distinguishing among the kinds of invocations they seek.


RLUIPA and compelling government interests

Well this is good news. An Anglican church in Jacksonville Beach has received permission to build a new church, over two rejections from the local planning board. A court found that under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the community had the right to build their church.

Controversy over building churches occurs much more often than one would think, at least to me. Many communities do not want them, and provide for zoning plans to exclude them (and, it is true, many other types of non-residential buildings) from residential zones. Although there is a healthy debate about whether this kind of zoning makes sense as a matter of planning, RLUIPA is directed at the particular issue of preventing discrimination against religious buildings and treating them differently from other kinds of structures.

The Church of Our Savior purchased plots of land on which to build their church. Although the town planning department approved the application, the planning commission rejected it, citing concerns unspecified in the opinion about the traffic and the “character” of the neighborhood. A further refinement of the proposed plan, including turning part of the plot into a public park, failed to satisfy the commission. The town promptly changed its zoning code to try to neutralize the church’s claim it was being treated unequally.

The court wrote a thorough opinion addressing the RLUIPA claims. Simply denying a church a permit to build, or to require changes to a building plan, do not “substantially burden” a religious group’s rights under RLUIPA. Land is finite and, as is taught in law school, each parcel is unique. Market conditions, and not government action, are often the cause of a religious group not getting the property it wishes. Accordingly, the Court rejected most of the church’s claims of RLUIPA violation as a general principle.

However, the Court upheld a RLUIPA claim, as applied to the church, finding that the planning commission had treated it unequally. The commission had recently approved a very similar application for a school, and could not, to the Court’s satisfaction, articulate a “compelling government interest” that justified a full rejection of the Church’s plan. The commission asserted an interest in “preserving the character and safety of its residential neighborhoods through enforcement of its zoning regulations …. Even assuming that this constitutes a compelling government interest under RLUIPA, the Court finds that a blanket denial of the Church’s application was not narrowly tailored to further that interest.”

This seems like the right result.  Since the church location was near a large street and an amusement park, it is difficult to see how their parking spaces and 200-person church would affect the “character” of the neighborhood. What seems to have (rightly) bothered the court is the sudden change in the zoning code and its obvious unequal treatment of the church.  This kind of last-minute objection and inarticulate “character” assertions are exactly the kind of arguments RLUIPA holds up to scrutiny, but one can’t help but wonder how many times they prevail.

Notre Dame Law Review Symposium on Dignitatis Humanae (Nov. 5-6)

University_of_Notre_Dame_739399_i0Next month, Marc and I will both be presenting papers at a symposium on the 50th anniversary of Dignitatis Humanae, the Vatican II declaration on religious freedom. The symposium, sponsored by the Notre Dame Law Review, will take place in South Bend. In addition to Marc and myself, panelists include Thomas Berg of the University of St. Thomas School of Law, Paul Horwitz of the University of Alabama School of Law, Christopher Lund of Wayne State University Law School; Brett Scharffs of Brigham Young University Law School, Steven Smith of the University of San Diego School of Law, Anna Su of the University of Toronto Faculty of Law, and Richard Garnett and Phillip Muñoz of Notre Dame Law School.  The panels will be moderated by Judge Richard Sullivan of the Southern District of New York. The Symposium will feature a keynote address from John H. Garvey, President of The Catholic University of America.

Further details are here. CLR Forum readers, please stop by and say hello!

Religious Freedom in America

I have been reading this collection on “Religious Freedom in America,” edited by Allen Hertzke. The authors cover the subject from a number of perspectives, including Thomas Kidd and Vincent Philip Muñoz with perspectives on the Founding, and important contributions from the Sikh and Muslim traditions, which are not often heard in these debates.

There is also an empirical essay of particular interest for those trying to figure out the current state of religious freedom. America post-Smith has a welter of “mini-RFRAs” establishing balancing tests meant to offer more protection to religious exercise than a “rational basis” standard. The results are not encouraging. Professors Robert R. Martin and Roger Finke collected thousands of religious liberty cases and coded them according to various metrics. One metric was how often courts invoked a “compelling” government interest in considering a religious liberty claim. In an earlier post, I had noted the relative lack of detail in judicial opinions concerning what constitutes a “compelling” interest in federal law that, along with the least restrictive means to meet that interest, would overcome a substantial burden on religious freedom.   The authors provide some answers from their review of state court decisions. Their review indicated that states have articulated at least some compelling interests; these include “completing a trial without a three-day delay in deliberations, maintaining a zoning district as a single-family residential zone and … public safety and ‘aesthetics’”.  Among other things, they conclude that although the United States remains a stronghold for religious liberty by comparison with other countries, religious freedom prevails in less than half the cases, and that “free exercise claimants remain at a stark disadvantage in the face of generally applicable, religiously neutral laws.”

From the results of this study, it seems the legacy of Smith has worked all too well. Despite RFRA and state-level initiatives, the state under cover of “neutral” laws, still wins most of the time. And there is much reason to believe many of these neutral laws are not neutral at all, especially when we consider initiatives like the contraceptive mandate. But this study does give the lie to the arguments of some secularists that religion is too powerful in our society. The contrary seems to be increasingly the case.