Monday, June 23, 2014
Read this. [1], [2], [3]
[1] Don't read the full set of comments that it links to and summarizes. Don't.
[2] I'm pretty sure the original post with comment thread is real (impossible to imagine someone constructing it); but just in case, I am hereby covering myself.
[3] Way to go, everyone, warm up for Hobby Lobby!
Tuesday, June 17, 2014
The Washington Post's Dana Milbank reports on a Heritage Foundation panel this weekend on the Benghazi issue, where a group of speakers weighed in on the Muslim threat to America:
Then Saba Ahmed, an American University law student, stood in the back of the room and asked a question in a soft voice. “We portray Islam and all Muslims as bad, but there’s 1.8 billion followers of Islam,” she told them. “We have 8 million-plus Muslim Americans in this country and I don’t see them represented here.” ...
If the report is accurate, the speakers then contempuously dismissed Ms. Ahmed's point, to the cheers of the crowd. One speaker, Brigitte Gabriel of a group called ACT! for America,
dismissed as “irrelevant” the “2.3 million Arab Muslims living in the United States [when] it took 19 hijackers — 19 radicals — to bring America down.” She mocked Ahmed’s “point about peaceful, moderate Muslims” by making quotation marks with her fingers when she said the word peaceful.
Heritage's attitude seems to be unchanged from, or worse than, a few years ago, when they invited me to speak with a couple of other panelists about "Islam and Religious Liberty." I said yes and described my thesis: that it was vital for religious traditionalists to enlist American Muslims, most whom are both devout and peaceful, as partners in the defense of full religious liberty, i.e. the freedom of all Americans to live out religious values in society, not just in private/insular settings. The staff member who had conveyed the invitation called back the next day and said that wasn't what her supervisors had in mind: they really wanted only talks about how Islam threatened religious liberty.
That attitude is both unfair and short-sighted. It's important, of course, to talk and act concerning radical Islam's threats of violence; but it's simply wrong to ignore how much most Muslim practice, especially in America, differs from that, and how much Muslim citizens can contribute to our society.
There are important voices challenging religious conservatives (and all Americans, because this problem crosses ideological lines) to reject anti-Muslim prejudice. They include our own Robbie George, and the Becket Fund for Religious Liberty. Keep up that crucial work!
UPDATE: As several people pointed out to me, Milbank's characterization has been sharply criticized, here and here. You can look at the video here. I think it does complicate the simple story Milbank tells. For one thing, Frank Gaffney gives a respectful response to the woman's question while still making his point: clearly not all the speakers dismiss her. For another thing, it's unclear whether, as the speaker Ms. Gabriel charged, the questioner introduced the issue about Islam without any provocation from anything any of the speakers had said. But I do think the video still supports a couple of points:
(1) Ms. Gabriel adopts a hostile and accusatory tone to the questioner (who only asked whether it's possible to win the war against radical Islam without undercutting the appeal of the ideology), and Ms. Gabriel dismisses moderate Muslims as "irrelevant" the fight against radical Islam. I don't think wholesale dismissals of peaceful Muslims as "irrelevant" are likely to increase conservatism's appeal to those folks, who as I said might otherwise be allies on some important social and cultural issues. The fact that she acknowledged most Muslims are peaceful does not undo the counterproductive results of dismissing them as irrelevant.
(2) Although I wasn't in the room, the ovation from the crowd (with quite a few people standing) in response to Ms. Gabriel's comeback had a level of emotion that I don't think reflects a hospitable attitude toward Muslim citizens, or would reasonably be taken by Muslims as hospitable.
No doubt I'm reading my own experience with Heritage into a judgment about the balance in the programs it does on this subject. (There's no audio of the phone conversation I had with Heritage about their invitation, so you'll have to take my word for it.) And Heritage's approach isn't really the issue. But there is an undeniable problem here, folks. I also read attitudes about Muslims in light of evidence like the empirical work of Greg and his co-authors, which shows that Muslims have a markedly lower success rate than other groups in their religious-liberty claims in federal court. The authors conclude, after investigating other possible causes for this pattern, that "the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges."
Wednesday, June 11, 2014
At "Cornerstone," the blog on religious freedom of Georgetown's Berkley Center, I have an essay about the likely result in Hobby Lobby/Conestoga: "Kennedy, the Perennial Swing Vote, and the Likelihood of A Narrow Ruling." The title pretty much summarizes it. I think the fears that any ruling upholding Hobby Lobby's religious-freedom claim will reflect a libertarian, Lochner-type "trash government regulation" approach are greatly overstated, because there are principled narrow ways to reach that result:
We can’t be certain which way Kennedy, and therefore the Court, will go. My point is that the Court can sustain the companies’ challenges on narrow grounds that will not pose any threat to the broad range of commercial regulations. I hope, and I think the chances are good, that the Court will do just that.
Monday, June 9, 2014
The Washington Post has a story on the various health-care financing options outside the Affordable Care Act that have grown since the Act was passed, with signups from people opposed to the law's requirements. These include the faith-based "healthcare sharing ministries" that have an explicit (limited) exemption from the Act.
[Sarah] Tucker dropped the private health plan she had carried for more than a decade and joined Christian Healthcare Ministries, a faith-based nonprofit in which members pool their money to pay for one another’s medical needs — and promise to adhere to biblical values, such as attending church and abstaining from sex outside marriage....
Christian Healthcare Ministries ... has existed since the 1980s, but membership has surged — growing by 60 percent to more than 80,000 members — since the health-care law was passed. The most popular plan costs $150 a month per person and covers medical bills up to $125,000 for any single illness or incident. People with higher bills are covered if they belong to a special program in which members split the cost. This “brother’s keeper” program typically costs less than $100 a year, according to the group....
As someone who studies both religious liberty and religious social ethics, I'm interested in ways in which religious objectors to legal requirements like the ACA are forming, or might form, alternative institutions and practices that avoid the regulations. For devotees of a Stanley Hauerwas-type perspective on Christian ethics, this whole process might be salutary: Christians resisting the norms of the general secular culture, meeting more of the needs of each other and others through highly distinctive church-related practices and organizations, and thereby moving further toward seeing the church as an "alternative polis." There are, of course, major challenges involved in making that move:
"These ministries operate on a very high degree of trust,” said Timothy S. Jost, a Washington and Lee University law professor and consumer advocate. “It’s really important that people really believe in this and are committed to this. If you have a bunch of people sign up who are doing this only to [avoid the health-care law], the whole thing can collapse.”
Friday, June 6, 2014
Those interested in how Islam--and religions in general--relate to human rights should take a look at these findings from leading international-law scholar Tom Ginsburg and a co-author, concerning "Islamic clauses" in national constitutions, i.e. clauses that make Islam the supreme law. The authors analyzed a data set of constitutions adopted in majority-Muslim countries over decades and concluded, among other things,
that in many cases, these clauses are not only popularly demanded, but are also first introduced into their respective jurisdictions during moments of liberalization and modernization. [Moreover,] contrary to the claims of those who assume that the constitutional incorporation of Islam will be antithetical to human rights, we demonstrate that almost every instance of “Constitutional Islamization” is accompanied by an expansion, and not a reduction, in the rights provided by the constitution. Indeed, constitutions which incorporate Islamic supremacy clauses are even more rights-heavy than constitutions of other Muslim countries which do not incorporate these clauses. We explain the incidence of this surprising relationship using the logic of coalitional politics.
These findings have significant normative implications.... [Among other things, they] suggest that outsiders monitoring constitution-making in majority Muslim countries who argue for the exclusion of Islamic clauses are focused on a straw man; not only are these clauses popular, but they are nearly always accompanied by a set of rights provisions that could advance basic values of liberal democracy. We accordingly suggest that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation, than on the Islamic provisions themselves.
Thursday, May 29, 2014
Dahlia Lithwick in Slate calls attention to--and eviscerates--the campaign, by a couple of University of Virginia students (one actually a new alum) and an LGBT advocacy group, against Doug Laycock of UVA. The campaigners claim they want to open a "dialogue" with Prof. Laycock about "the [allegedly harmful] real-world consequences" of his work in defense of religious freedom in the contexts of gay marriage and the HHS mandate. They claim they don't want to silence or harass him but only to make him aware of how conservative groups have used his writing. But the campaigners have initiated their "dialogue" with a FOIA request for telephone and email records in order to see Doug's communications with conservative groups.
Lithwick's article says most of what needs to be said against this. (So does our MOJ friend Steve Bainbridge: "You don't start a dialogue with FOIA requests.") It's remarkable, the disingenousness of these campaigners in claiming they're simply seeking to educate one of the leading and most thoughtful religious-liberty scholars of our time--and that a FOIA request is somehow part of an effort to promote dialogue rather than to harass an academic because of some of his positions.
The dark lesson one could draw from this (and other episodes like Brandon Eich at Mozilla) is that left-ish activists will increasingly try to intimdate those who depart from their views on even one important matter--even on whether to protect religious dissenters (since Prof. Laycock, as many MOJ readers will know, is a supporter of same-sex marriage itself). That kind of pressure will no doubt intensify in the future. (The FOIA tactic, it should be noted sadly, is increasingly being used by both sides in political/cultural wars.) More optimstically, however, one could note that this pressure campaign drew no support from major gay-rights groups, at UVA or elsewhere, and has quickly been condemned by Lithwick and Brian Leiter--neither of whom, to put it mildly, sympathizes with the traditionalist position on gay marriage.
Monday, May 5, 2014
I'm struck by a couple of the eloquent passages in Kagan's dissent in Town of Greece:
The not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike. A person’s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity—who that person is and how she faces the world ....
I would treat more seriously the multiplicity of Americans’ religious commitments, along with the challenge they can pose to the project—the distinctively American project—of creating one from the many, and governing all as united.
In Hobby Lobby, and in other cases about free exercise rights, we hear people on the left arguing "What's the big deal, anyway?" Nobody--so the argument goes--is forcing Hobby Lobby's owners to use contraceptives/potential-abortifacients, or administer them, or endorse their use, and including them in an insurance policy is not much different than paying a salary to an employee who will use it for contraception; likewise, nobody is forcing Catholic institutions to host or perform same-sex marriages, or to say they are good, so what's the real impact on religious commitments? And also, "What's so special about religion? People have lots of objections to government policies and don't get to claim an exemption."
Kagan's identification of religious belief as a "core aspect of identity" helps answer why it's a big deal, and why religious objections to majoritarian policies are distinctive. The depth and comprehensive nature of a religious belief, for someone who believes it strongly enough to stand up for it, means that the person suffers a serious burden to his/her integrity when pressured to act in ways inconsistent with the belief. I wish the majority had give more weight to this in today's case where the objection was to the government's implementation of a policy concerning religious acts (prayers). And I hope that it presages that in Hobby Lobby, Kagan will take the business owners' objections to a secular government policy seriously and at least vote to require a strong reason to override them.
This spring we began a new Religious Liberty Appellate Clinic at St. Thomas, under my supervision, offering four to six law students each year the opportunity to draft briefs in important religious liberty cases, typically on behalf of national civil liberties and religious organizations filing as amicus curiae. The clinic gives students an intensive experience in formulating, writing, and refining appellate arguments, with review by experienced advocates, and in the strategy of framing arguments by amici, who (as many readers know) typically present distinctive information or issues that may benefit the judges deciding the case.
We just submitted our first two briefs, in cases in the Sixth and Seventh Circuits, and I'm really proud of the work the first two students have done.
The first brief, drafted by student Julie Cayemberg, was filed in the Seventh Circuit in Freedom from Religion Foundation v. Lew, a challenge to the constitutionality of the federal tax-code provision that allows ministers to exclude from their taxable income a cash allowance they receive from their church employer for housing. The brief defends the housing-allowance exclusion based on the principle that government may treat ministers differently from other occupations in order to serve important church-state values—in this case, the value of treating all clergy and churches equally, since ministers who live in a church-owned parsonage are already able to exclude that benefit from their income. The brief also emphasizes that invalidating the allowance would seriously harm retired and near-retired ministers who, “in good faith, structured their finances and their retirement planning around a section of the tax code extant in its current form for 60 years.”
The second brief, drafted by student Nicole Swisher, was filed in the Sixth Circuit in Child Evangelism Fellowship v. Cleveland School District, a case involving the First Amendment right of a private religious club for elementary school students to meet in public schoolrooms on the same terms as the Boy Scouts, who the school permits to use the rooms without paying a fee. The school district asserts that it has an “in kind” arrangement under which the Scouts receive free use in return for providing Scouting materials free of charge to participants in the Scouting program; the religious club points out that it too provides its materials free of charge to its participants but was never told by the district that any such in-kind arrangement was available. The amicus brief explains, by reviewing multiple cases over the last 25 years, that the district’s unpublicized in-kind arrangement fits a pattern of efforts by school districts to evade the requirement that they give equal access to expressive groups with religious viewpoints.
The briefs were filed on behalf of coalitions of groups including, among others, the Christian Legal Society, the National Hispanic Christian Leadership Conference, and the National Association of Evangelicals (both cases); the Queens Federation of Churches (Seventh Circuit case); and the Southern Baptist Convention and the General Conference of Seventh-Day Adventists (Sixth Circuit case).
Thanks, Marc and Rick, for kicking off discussion about Town of Greece. The opinions offer something of note on the many varied issues that we varied bloggers emphasize.
Justice Kennedy—the deciding vote as usual—wrote the majority opinion to approve legislative prayers, based on the long tradition of conducting them, but also to leave some room to challenge them in another case if “the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” These qualifiers create a real tension in the opinion. The Court refused to require that each prayer be “nonsectarian” (for example, to forbid prayers given “in Jesus’ name”), on the ground that this would require legislatures and reviewing courts “to act as supervisors and censors of religious speech,” with no consensus as to what is “sectarian.” The way to achieve fair treatment across religions, the Court says, is to have prayers from different faiths, not to drain the specific content from each prayer. I’m quite sympathetic to that holding. But to suggest that prayers may not “preach conversion” or warn about damnation likewise invites supervision and censorship—while on the other hand, placing no limits on such prayers can lead to highly divisive controversies for relatively little gain. Moreover, there is likewise a lack of consensus—indeed, there is sharp disagreement—over when a particular prayer is becomes “denigrating” or “proselytizing.” The brief I joined with other scholars criticizing legislative prayers provides evidence that these problems will be (because they have been) non-trivial and recurring. Why is the Court OK with one kind of censorship and division but not another?
Marc’s answer (and, for the most part, the Court majority’s) looks to tradition to sort out those questions. We have a history of allowing prayers in Jesus’s name, but also of reacting against prayers that “attack” others. Even though drawing content-based lines in either case involve similar logical problems, a lot of Americans—and the Court—seem to be comfortable with the distinction and muddling through under it. And Rick rightly continues to remind us that no course of action will avoid division—so the answer may be, as the Court says, to intervene only when “a course and practice over time” shows denigration of minorities. That standard pretty much limits future challenges to places dominated by one faith where officials make no effort to be open to or respectful of others.
Still, in all of these cases involving practices of “civil religion,” I remain uncomfortable when their proponents—who are mostly religious believers—show confidence in majority rule and dismiss arguments that the impacts upon religious minorities are a special matter of concern. As I’ve written in various contexts before, if traditional/orthodox believers want the burdens they experience from government policy like the HHS mandate to be given distinctive weight, they should give also distinctive weight to the burdens of other minorities, including those felt by someone who experiences a prayer he deeply disagrees with at the beginning of a public meeting where he is presenting his case to the decision makers. The propositions “Let the majority decide” and “Religion is like other issues” are very harmful to claims on the free exercise side—which is increasingly where traditionalist Christians will have to seek protection, as the news discussed on this blog confirms almost daily.
Predictably, I’ve been asked by reporters about what Town of Greece means for the contraception-mandate cases. It’s hard to draw much from an Establishment Clause decision to predict a decision on the “free exercise” side of religious-liberty matters. I think the Court should strive for more of a consistent vision of the two clauses, but it still tends to see them as distinct matters.
With that said, one possible general lesson from Town of Greece is that in disputes over religion the Court will allow the majority to act in ways that promote “shared ideals and common ends” (to use the Court’s words) even if that affects religious dissenters. That theme would suggest the Court will be reluctant to overturn the federal mandate on commercial employers to cover contraception. That’s the majoritarian strain in the Establishment Clause debate that worries me for free exercise (RFRA) rights.
I recognize there’s a very different perspective on this: an argument that ceremonial invocations of religion support meaningful free exercise by affirming that faith is not simply an insular, private matter but may be carried into civil society, so that free exercise accommodations are not limited to churches and clergy but extend to religious institutions that engage in activities of a civic nature such as education and social services. (I explored that line of argument here.) And Town of Greece contains a passage with some bearing on this. The Court finishes by saying that ceremonial prayer recognizes “that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power.” In the contraception cases, the objecting employers argue that they should able to follow their duties to a higher power even as they participate in a “civic” activity such as economic life. This vision—that religious practice is not confined to insular private spheres—is more hospitable to the business owners challenging the mandate.
In the end, for the reasons in the last-linked article above, I think we have to maintain a distinctive sympathy for religious objectors on the establishment side—for a number of reasons, but partly in order to maintain a distinctive sympathy for religious objectors on the free exercise side. You can allow legislative prayer and still keep that distinctive sympathy, but you have to be careful.
Sunday, May 4, 2014
Jim Oberstar, the longtime Minnesota congressman who died Saturday at age 79, represented several great strains in American public life that we need to recall and revitalize. Oberstar was a hero of mine before I came to Minnesota a dozen years ago, and it is one of my joys to hold a professorship named for him and supported by donors who rightly wanted to honor his service. Let me say a bit about the values he represented.
Jim Oberstar believed in the capacity of government to increase people’s opportunities to realize their dreams. Raised on the Iron Range as a miner’s son, he knew the help that public works, labor unions, and other features of the New Deal had brought to average Americans. In strongly affirming government’s positive role, he strongly disagreed with many of his fellow legislators. But in these conflicts, he was one of those members, on both sides of the aisle, who viewed public policy as a serious matter—as a means to seek the common good, not simply partisan advantage. As a leading member and ultimately chair of the House Transportation Committee, “he was held in high regard by Republicans,” the Washington Post reports, “because he sought to keep issues before the Transportation Committee free of partisan rancor.” We certainly need to revitalize that spirit today.
I saw Oberstar’s geniality expressed several times, most recently last spring when he visited St. Thomas, his alma mater, and had lunch with law students. He spoke to them about how to move a bill through the House of Representatives, but also about his life-long interest in French culture: his graduate studies in Belgium and Quebec, his time as a young man teaching in Haiti. He modeled for them a life well lived, one continually open to learning and to service.
He also believed passionately in the importance of infrastructure to both economic and cultural life. He was a leader in supporting the development and improvement of systems from air transportation to bridges to urban bike paths. Today crumbling parts of our infrastructure call out for work to repair and modernize them, while millions of Americans look for work to make a living and contribute to society. These needs often overlap, and we might be able to address some of them together if we combined Jim Oberstar’s passion for building with his practical ability to find solutions among people of diverse views.
Last but certainly not least, Oberstar represented the pro-life position within the Democratic Party. He ran for the Democratic-Farmer-Labor nomination for Senate in 1984 and was defeated in part because he would not adopt the pro-choice position that was becoming increasingly dominant within the party. In a 2005 address at the St. Thomas law school (available here), he cited Joseph Cardinal Bernardin’s metaphor of the “seamless garment of life” and stated that “it is not sufficient to be opposed to abortion: we must also support pre- and post-natal care of mother and child; we must advocate for education, health care, jobs with a livable wage, housing and food for the needy; oppose the death penalty; and resist unjust war.” For Jim Oberstar, protecting the unborn was of one piece with protecting the vulnerable in other aspects of life: an essential component of the common good. We desperately need to strengthen that voice today, calling Democrats back to apply to the unborn their concern for “the least of these,” and calling all of us to an ethic of care supporting all those in need and reducing the situations that drive women to feel they need abortions.
That 2005 address came at the close of a St. Thomas Law Journal symposium on “the seamless garment” and “the future of pro-life progressivism.” In it Oberstar, a Catholic, spoke of the challenges of applying one’s faith to politics; he concluded by reminding us of the priorities the Bible sets forth. "In all that I undertake in public life,” he said,
I am guided by the firm belief that, at the end of life, we will be judged, not by the volume of grain in our bins, not the size of our budget surplus, nor the might of our armies. We will be judged by:
I was hungry and you gave me food.
I was thirsty and you gave me drink.
I was a stranger and you made me welcome.
I was naked and you clothed me.
Thank you, Jim Oberstar, for all you stood for, and stand for.
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