Archive for the ‘Religion’ Category
posted by Richard Storrow
The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.
The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.
New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.
Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.
While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.
Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.
If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.
November 21, 2013 at 3:44 pm Tags: First Amendment, Public Accommodations, Sexual Orientation Discrimination Posted in: Civil Rights, Constitutional Law, First Amendment, LGBT, Religion Print This Post 21 Comments
posted by Gerard Magliocca
You cannot bring an as-applied challenge to a general law that burdens your free exercise of religion. This is the holding of Employment Division v. Smith (or at least the basic holding–there are some qualifications). Suppose I instead bring a free speech claim on behalf of my desire to say a prayer or do something religious. You can make an as-applied challenge to a general law on free speech grounds. How should a court address this sort of claim?
I ask because the New Mexico wedding photographers who were found liable for violating the state’s non-discrimination law because they refused to shoot a same-sex commitment ceremony made both claims (free exercise and free speech) in state court. In their certiorari petition, though, they are only making a free speech claim. Can these claims be separated? In other words, if the motivation is religious, then shouldn’t Smith apply? If not, isn’t it pretty easy to circumvent Smith? And doesn’t the distinction between free speech and free exercise require courts to make sensitive judgments about what constitutes a genuine religious claim?
posted by Kaimipono D. Wenger
I’ve just posted to SSRN my article in the forthcoming St. John’s Journal of Civil Rights and Economic Development. This article is part of the recent Symposium on Same-Sex Marriage at St. John’s.
My article is largely descriptive, setting out in some detail the LDS (Mormon) church’s actions and statements relating to Proposition 8. It chronicles a significant amount of factual material that has not been discussed at all in the existing legal literature. It may be especially relevant to people who have an interest in Proposition 8, same-sex marriage issues, gay rights issues generally, or LDS church issues generally. Full abstract follows past the jump: Read the rest of this post »
posted by Aaron Saiger
The heartening (and unanimous) decision by the Indiana Supreme Court on Tuesday to uphold that state’s school-voucher program further undermines a dominant but false narrative in the academy, to the effect that school vouchers are a distraction with little serious political support. The opinion is notable for several reasons, and I expect to post again about some of them. Here I note only two. First, the Indiana program makes enormous numbers of children voucher-eligible. Second, the Indiana court’s analysis makes some interesting and important moves with respect to both its constitution’s religion and education clauses.
posted by Rick Garnett
I am delighted by and grateful for the opportunity to participate in the Concurring Opinions symposium on Jim and Linda’s engaging, important, and challenging new book, Ordered Liberty. And, the contributions so far have managed the tough task of enriching what was already the very welcome opportunity to read and think about the book.
I have — like Linda and Jim, though I’m sure not with their success — tried to think and write about “civil society” and “seedbeds of virtue” (here), about the tension and even conflicts between liberty and equality (here), and about the moral and legal rights of parents to direct and control — within some limits — the education of their children (here). Ordered Liberty has given me a needed opportunity to re-visit and re-think some of what I’ve said and thought, and I’m sure that process will continue.
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
posted by Gerard Magliocca
The upcoming election and (nearly) unprecedented abdication of Pope Benedict XVI raises several fascinating questions. What if he changes his mind next week? Can he withdraw his resignation? What do you call an ex-Pope? Pope Emeritus? Your Former Holiness? It’s also worth noting that Benedict changed the rule on papal elections to require a 2/3 majority in the conclave. John Paul II had instituted a rule that would (after a certain number of ballots) permit less than 2/3 of the eligible cardinals to elect a Pope.
From a trademark angle, a papal election means another free-for-all on possible papal domain names. Last time around, somebody grabbed up every address that could be used if you assumed that the new Pope would pick a name that was chosen before. He then donated Benedict XVI’s name to the Vatican–apparently he just wanted to keep the names out of the hands of a critic of Catholicism. Perhaps the same guy is doing that now. Nothing stops you from getting in on this gold rush though, unless the new Pope crosses us up and pick an entirely new name.
Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
posted by Andrew Sutter
Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)
Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.
But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.
posted by Caroline Mala Corbin
In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.
The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.
Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.
Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.
Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.
November 2, 2012 at 11:05 am Tags: contraception, contraception mandate, health care, religious liberty, RFRA, women Posted in: Constitutional Law, Feminism and Gender, First Amendment, Health Law, Religion Print This Post 5 Comments
posted by Caroline Mala Corbin
The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.
It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.
While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.
What about the Religious Freedom Restoration Act? Stay tuned.
October 29, 2012 at 1:52 pm Tags: ACA, contraception, contraception mandate, equality, free exercise, health care, religious liberty, women Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Health Law, Religion Print This Post 19 Comments
posted by Caroline Mala Corbin
The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.
Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”
October 20, 2012 at 2:25 pm Tags: contraception, establishment, funding, religious liberty, sex trafficking Posted in: Civil Rights, Constitutional Law, Feminism and Gender, First Amendment, Religion Print This Post 8 Comments
posted by Caroline Mala Corbin
In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.
Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?
October 15, 2012 at 4:00 pm Tags: Bob Jones, discrimination, free exercise, Race, sex, taxes Posted in: Civil Rights, Constitutional Law, Education, Feminism and Gender, First Amendment, Law and Inequality, Race, Religion Print This Post 10 Comments
posted by Frank Pasquale
I’m often reminded of Madhavi Sunder’s brilliant article Cultural Dissent. Sunder argues that recognition of dissent within doctrine “would prevent law from becoming complicit in . . . project[s] of suppressing internal cultural reform.” Consider the Russian feminist band which could be imprisoned for staging a minute-long rock video in a church. The band sang and performed an intercessory prayer for the removal of President Putin from power. Here is one member’s closing statement:
That Christ the Savior Cathedral had become a significant symbol in the political strategy of the authorities was clear to many thinking people when Vladimir Putin’s former [KGB] colleague Kirill Gundyayev took over as leader of the Russian Orthodox Church. After this happened, Christ the Savior Cathedral began to be openly used as a flashy backdrop for the politics of the security forces, which are the main source of political power in Russia.
Why did Putin feel the need to exploit the Orthodox religion and its aesthetic? Read the rest of this post »
posted by Gerard Magliocca
Like most Protestants during the nineteenth century, Bingham wasn’t crazy about the Pope. In 1870, he denied the charge that he wanted to “persecute Rome on account of the peculiar religious notions” of the Vatican, which was an odd way of defending yourself against religious bias. He said in the same speech that, in contrast to his belief in “free governments, free churches, free schools, free Bibles, and free men,” Catholic doctrine was “an attempt to fetter the freedom of conscience; it is an attempt to fetter the freedom of speech; it is an attempt to fetter the freedom of the press.” Despite his distaste for the Holy See, Bingham held that “religious belief, of whatever character, ought to be tolerated, that error itself ‘may be tolerated’ in the words of [Jefferson] ‘where reason is left free to combat it.’”
I guess this is my Easter message, though that wasn’t my intent when I started writing this post.
posted by Danielle Citron
On February 19, 2009, the North Central Texas Fusion Center issued a bulletin to over a hundred law enforcement agencies that urged officers to report activities of pro-Islam groups. As the bulletin explained, “Middle Eastern Terrorist groups and their supporting organizations have been successful in gaining support for Islamic goals in the United States and providing an environment for terrorist organizations to flourish.” Groups warranting surveillance and reporting included the Council on American Islamic Relations (CAIR), which “presents itself as a Muslim Civil liberties group yet it was named an unindicted co-conspirator in the Justice Department’s case in Dallas against the Holy Land Foundation, a Hamas-linked Islamic charity.” So, too, “pushing an aggressive, pro-Islam agenda that’s been increasingly successful in recent years takes on a new light.” According to the bulletin, while certain activities in isolation may seem innocuous, they may in fact promote Islamic radicalization.” The bulletin provided the following examples: “Muslim cab drivers in Minneapolis refuse to carry passengers who have alcohol in their possession; The Indianapolis airport in 2007 installed foot baths to accommodate Muslim prayer; Public schools schedule prayer breaks to accommodate Muslim students; Pork is banned in the workplace ; etc..” Islamic radicalization “marketing schemes have included hip hop fashion boutiques, hip hop bands, use of online social networks, use of video sharing networks, chat forums and blogs.” (See here for links to the bulletin).
The bulletin was leaked online, and apologies ensued. At a sub-committee hearing of the House of Representatives Homeland Security Committee entitled “The Future of Fusion Centers: Potential Promise and Dangers,” John Bateman of the Texas Department of Public Safety and Robert Riegle from the US Department of Homeland Security denounced the bulletin. David Gersten of the U.S. Department of Homeland Security described it as a “demonstration of what not to do.” Mr. Riegle testified:
We took immediate and aggressive response to the bulletin… we immediately sent a team of civil liberties and civil rights experts down to the state of Texas to work directly with the center. This included advocates from the Muslim-American community in the United States of America. We also then immediately altered the directors’ meeting at the national conference to emphasize the importance of this and went over this particular oversight error as aggressively as we possibly could.”
Apologies for surveillance of First Amendment activities are so yesterday–at least in New York. The New York Times recently covered the New York Police Department’s monitoring of websites of Muslim student groups at more than a dozen universities. Mayor Michael R. Bloomberg defended the efforts as part of the department’s effort to guard against the threat of terrorism. As the mayor said in an appearance at the Brooklyn Public Library, “The Police Department goes where there are allegations, and they look to see whether those allegations are true. That’s what you would expect them to do. That’s what you would want them to do.” Yale University’s president, Richard C. Levin, has this to say in an e-mail to students, faculty, and staff: “I am writing to state, in the strongest possible terms, that police surveillance based on religion, nationality, or peacefully expressed political opinion is antithetical to the values of Yale, the academic community, and the United States.” These activities resemble the monitoring of protected groups during the COINTELPRO era, which the Church Committee denounced and which Congress sought to prevent in 28 C.F.R. part 23. If the monitoring spearheaded by the NYPD isn’t included in records that make their way into federal databases, fair information practices required by federal law would not apply. And New York’s laws may not preclude records of expressive activities, hence the lack of apology.
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0 Print This Post 3 Comments
posted by Gerard Magliocca
I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion. There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.
Recent events, though, show why Smith rests on a questionable understanding of the First Amendment. When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith. When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom. And those howls are right. Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim. But they don’t.
posted by Frank Pasquale
Pope Benedict’s interpretations of Catholic Social Thought have been consistently inspiring. His recent message on the World Day of Justice and Peace focused on the material foundations of a just and well-ordered society.
“Blessed are the peacemakers, for they shall be called sons of God”, as Jesus says in the Sermon on the Mount (Mt 5:9). Peace for all is the fruit of justice for all, and no one can shirk this essential task of promoting justice, according to one’s particular areas of competence and responsibility. . . .
Peace . . . is not merely a gift to be received: it is also a task to be undertaken. In order to be true peacemakers, we must educate ourselves in compassion, solidarity, working together, fraternity, in being active within the community and concerned to raise awareness about national and international issues and the importance of seeking adequate mechanisms for the redistribution of wealth, the promotion of growth, cooperation for development and conflict resolution.
This position confirms a long line of encyclicals urging the fair distribution of global resources. As Pope Benedict earlier stated in Caritas in Veritate, “Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function.”
Read the rest of this post »
posted by Leslie Griffin
JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?
Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.
Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:
If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.
Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.
October 11, 2011 at 9:59 pm Tags: Constitutional Law, discrimination, First Amendment, Supreme Court Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized Print This Post 3 Comments
posted by Leslie Griffin
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.
Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”
Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”
October 10, 2011 at 4:07 pm Tags: Civil Rights, Constitutional Law, discrimination, First Amendment, Supreme Court Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized Print This Post No Comments
posted by Leslie Griffin
Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?
The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.
Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?
Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.