Today is Religious Freedom Day, and President Trump issued this proclamation:
Faith is embedded in the history, spirit, and soul of our Nation. On Religious Freedom Day, we celebrate the many faiths that make up our country, and we commemorate the 232nd anniversary of the passing of a State law that has shaped and secured our cherished legacy of religious liberty.
Our forefathers, seeking refuge from religious persecution, believed in the eternal truth that freedom is not a gift from the government, but a sacred right from Almighty God. On the coattails of the American Revolution, on January 16, 1786, the Virginia General Assembly passed the Virginia Statute of Religious Freedom. This seminal bill, penned by Thomas Jefferson, states that, “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” Five years later, these principles served as the inspiration for the First Amendment, which affirms our right to choose and exercise faith without government coercion or reprisal.
Is the proclamation accurate? The relationship between the Virginia statute and the First Amendment is complicated. To say that the statute "served as the inspiration" for the Amendment is so overstated that it's wrong. (It tracks the Supreme Court's overbroad assertions in Everson v. Board of Education.) As Steve Smith, Kurt Lash, and others have emphasized, the Amendment also had support from states that did not go as far in recognizing religious freedom or church-state separation--even from New England states that maintained systems compelling taxpayers to support clergy, a practice the Virginia statute forbade. (It said that "no man shall be compelled to frequent or support any religious worship, place, or ministry.") The First Amendment reflected, significantly although not entirely, a "federalism" position confirming that the matter of religion would be outside federal power, left to the states: Virginia and New England could each follow their own policy.
But "not entirely." It is likewise wrong to say the Virginia statute--more precisely, as Trump's proclamation says, its "principles"--had nothing to do with the First Amendment. Talking specifically about "inspiration," there is the connection through Madison, who led the drives to adopt both the Virginia statute and the First Amendment. The dissenting evangelical groups who pressed (and pressed Madison in particular) for the Amendment advocated for religious freedom as a substantive right, not as a means of protecting Virginia's or other states' discretion to decide all religious-freedom matters however they wished.
Among the principles embodied in the Virginia statute, there was wider consensus across the states on what would typically be called principles of free exercise--i.e. the right to profess and exercise a faith without coercion--than principles solely of non-establishment--e.g. no money in any form to support religious institutions or activities. Even the New England states, with their funding for clergy, simultaneously had provisions guaranteeing free exercise to all faiths. Trump's proclamation quotes a "free exercise" portion of the Virginia statute.
And the Virginia statute had greater influence down the road, as all states eliminated their taxes for clergy by 1833. In that sense, the proclamation is correct that the statute "has shaped and secured our cherished legacy of religious liberty."
(Finally, just what our "legacy of religious liberty" means in all contexts of tax-supported funding is another question. The consensus rejection of affirmative funding uniquely for clergy does not decide the question whether religious providers of secular services--education, social services, healthcare--can, or even must, be included in general programs of funding that support those services. Principles of religious liberty might disapprove such inclusion--but they might also call for it. That's the issue the Court is working through today.)
A recent study by the Guttmacher Institute has found no evidence of change in women's contraceptive use as a result of the Affordable Care Act. The proportion of women with insurance coverage for contraceptives increased, but not the use or mixture of contraceptive methods.
This is unsurprising for anyone familiar with the weaknesses of the evidence for the government's repeated assertions in litigation that the contraceptives mandate actually advanced a compelling interest in protecting women's health.
After all, the mandate itself was the product of an Institute of Medicine group that deliberately chose not to scrutinize the relationship between insurance coverage and contraceptive use (as the opinion of the dissenting doctor explained). (Here's a blog post from almost five years ago in which I support this point in more detail, with links to the primary documents.) The government agencies nevertheless adopted the IOM's recommendation without any independent consideration of this relationship. And if the recent study is accurate, it turns out the government's litigators have been wrong thus far to insist that the mandate actually advances a compelling government interest in women's health.
Monday, January 15, 2018
I enjoyed speaking on this recent Federalist Society Teleforum, "Is the 'Parsonage Allowance' Allowed?" We discussed the tax-code provision permitting ministers to exclude from their gross income a housing allowance provided by their employer, up to the fair rental value of the home. Last October, Judge Crabb (W.D. Wis.) invalidated the provision as a violation of the Establishment Clause. If that ruling stands on appeal, the cost to religious organizations around the nation--the cost of making up for the new tax liability by paying additional salary--would likely exceed $1 billion yearly. That estimate, along with very useful insight on the provision and how organizations might respond to its invalidation, was provided by my teleforum co-speakers, John van Drunen and Michael Martin of the Evangelical Council on Financial Accountability (ECFA--an organization that does great work encouraging sound financial practices by religious nonprofits).
Here's the concluding bit from my own remarks (Download Housing Allowance - FedSoc Teleforum 2018-01-12 (delivered), which argued that the housing-allowance exclusion is quite defensible as constitutional but faces risks on appeal:
Ultimately, the result in this matter depends on the court’s attitude toward provisions that specifically accommodate religion. The exclusion will be upheld if the court takes a deferential approach and allows the government leeway as long as it’s reasonably promoting valid church-state concerns like denominational equality and nonentanglement in religious questions, and is not directly imposing a significant burden on anyone else. I believe that is the correct approach—the most consistent with the text, tradition, and precedents—especially with respect to treatment of ministers. But there are certainly judges who view it as presumptively unfair to exempt religion when arguably comparable nonreligious activities are not exempt, and they are likely to view the justifications for doing so here as insufficient.
Our religious liberty clinic at St. Thomas defended the provision at length in an amicus brief in a 2014 appeal, where the Seventh Circuit dismissed the challenge to the provision for lack of standing.
Following up on my last post about Thomas Joseph White's piece, here's a short op-ed from Prof. Chad Pecknold, on what St. Augustine has to say about Catholic strategy in a "liberal era." A bit:
For St. Augustine, the City of God on pilgrimage in this world is the only common good united to the highest good, and the Catholic Church gives us the “true attachment” (vera religio) to it. So it is only in communion with the Catholic Church that individuals, communities, peoples, cities, nations, can be properly “attached.” However, Augustine’s integralism also provides a realistic measure for the Catholic to judge regimes as more or less ideal, on a scale. In Augustine’s “alternative” definition of a republic, he argues that Catholics can and will need to use the relative peace of cities whose orders will be judged better or worse according to their “common objects of love.” That is, in non-ideal regimes, Augustine encourages the integralist to help move his neighbours from low to high, from loving vice to loving virtue, from self-centred order to God-centered order. . . .
I'm (still) sympathetic to the view that American-style constitutional democracy - correctly understood and practiced -- is ("relative[ly]" speaking) a more-ideal non-ideal regime. But, of course . . . I could be wrong!
Like a lot of people in the social-media-sphere these days, I'm reading and thinking about "liberalism", democracy, Catholicism, political theology, statism, integralism, pluralism, . . . papal kidnappings, etc. I hope other MOJ-ers will weigh in on some of the various posts and essays that have been attracting a lot of attention.
This particular piece, "The Metaphysics of Democracy," by Thomas Joseph White, O.P., in the February issue of First Things, was of particular interest to me this weekend. Here's a bit:
Liberalism began as a political project that sought to curtail the role of religion in public life. Religious impulses haven’t proven easy to expel, however, even in secular societies. Contemporary secular liberalism aspires to be a universal project that supplants traditional religion and relegates it to the private sphere. Paradoxically, this process frustrates the spiritual desires of many modern secular people, who are unsatisfied with thin consumerism and wish to participate in something greater than themselves. Their mounting rejection of the liberal project has precipitated a crisis, one felt most acutely in the political realm. It has taken the form of a resurgent nationalism, an inchoate response to the suppression of faith that is inadequate and perhaps dangerous. We need to address the weakness of liberal modernity differently, which means metaphysically. No doubt, an appeal to metaphysics strikes many as strangely abstract and inconsequential. Politics is the realm of action, and people want to see church leaders, politicians, lawyers, and columnists fighting for religious causes. One can sympathize with this instinct, but it ignores the deeper problem. The dispute over metaphysics was the concrete issue from the beginning. It always has been. . . .
I have tended to the view -- and, certainly, I might well have been mistaken -- that "liberalism" can (and should) be regarded and engaged as something (relatively) thin and procedural -- as involving "articles of peace, not of faith." Many smart people -- Legutko, Deneen, Vermeule, etc. -- are calling this view into question. We'll see . . . .
Friday, January 12, 2018
I always learn from Prof. Perry Dane's work. Here is a recent paper his, posted at SSRN:
One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church. With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “The State is not in the Church, but the Church is in the State” – does not.
Perry's use of the term "encounter" reminds me of my former colleague and mentor Bob Rodes's use of "nexus" and "dialogue" in the church-state context. I wrote a short paper about Rodes's approach here:
The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.
How, then, should we understand church-state separation? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration.
This essay is an appreciation, interpretation, and application of Professor Rodes's church-state work. In particular, it contrasts the church-state nexus that he has explored and explained with Jefferson's misleading but influential wall metaphor. After identifying and discussing a few of the more salient features of this nexus, it closes with some thoughts about how the leading themes in Rodes's law-and-religion writing can help us better understand and negotiate one of today's most pressing religious freedom problems.
Wednesday, January 10, 2018
Over at Public Discourse, here are Profs. Christopher Tollefsen and Michael Pakaluk on "the philosophical case against capital punishment." For me, for what it's worth, this essay -- now 17 years old -- by Avery Cardinal Dulles has always been helpful on the subject.
