This week the Supreme Court denied certiorari in the Bronx Household of Faith case, thereby allowing the New York City school board to single out religious worship services for exclusion from public school rooms open after hours to other community groups. Christianity Today has published an an interesting perspective from a NYC evangelical pastor, whose church will now have to find a new meeting place, on how Christians should respond. On the legal issues, Rick and I and others had filed a "Brief of First Amendment Scholars" (see here) supporting a cert grant, and school board's rule is irreconcilable with (among other things) Widmar v. Vincent, the case that Mike Paulsen has just reminded us was so crucial to development of the fundamental principle of "equal access" for religious activities.
Monday, December 12, 2011
A NYC Pastor's Perspective on Being Excluded from Schoolrooms
Saturday, November 26, 2011
Marilyn Monroe and a Model Professional
Last night Maureen and I saw the new film My Week with Marilyn, which has generated buzz because of Michelle Williams' portrayal of an alternately alluring and wigged-out Marilyn Monroe (in England shooting a film with Laurence Olivier in 1956; the film is based on the diary of one of the production staff). But another female role stuck with me: Judi Dench playing Dame Sybil Thorndike, the famous British Shakespearean and tragic actress, 75 years old in 1956, for whom George Bernard Shaw had written Saint Joan back in the 1920s. As this biography apparently details, Dame Sybil was sort of a saint herself: a suffragette and labor activist, a Christian believer who prayed before every performance and wrote a short book called Religion on the Stage, and a warm and caring person who "visited leper colonies, held the hands of dying children in Belsen after the war," and as an actor always did her best to make those around her comfortable. In the new movie, Dench as Dame Sybil understands her co-star Monroe's insecurity and tries to build her confidence with repeated acts of kindness. When Marilyn messes up her line (as happens frequently) in a scene they have together, Sybil (who is always consummately prepared) says so everyone can hear, "I must have given you the wrong [cue] line, dear." She stands up for Monroe by telling Olivier to stop "bullying" the young star. And when Sybil notices that another character, a young production staffer, is shivering in the cold studio, she arrives the next day with a new red scarf for him.
Lawyers, other professionals--all of us--can draw on many persons as models. In Dame Sybil's model, the professional does her work with care and skill and also goes out of her way to make those around her the best they can be, by paying attention to the things that burden them and those that encourage them, and by actively affirming their worth as persons. It's a fine model for any of us.
Tom
Wednesday, October 12, 2011
SCOTUS Blog Discussion on Ministerial Exception
As the national conversation discussion on church autonomy, the ministerial exception, and the Hosanna-Tabor case continues, the SCOTUS Blog has begun a discussion in its new "Community" pages. My lead-off comment is here. In it, I reason toward the broad ministerial exception from the proposition that the Catholic Church can't be forced to hire women priests--a proposition seemingly accepted by everyone at oral argument (but not, sadly, by everyone involved in the public discourse on this issue). I also thought it important to note in conclusion that
several justices were rightly incredulous at the government’s argument that this is simply an expressive association case--that the two Religion Clauses set no special rules for the relationship between a religious organization and the employees who perform its religious functions. Justice Kagan called the argument “amazing”; Justice Scalia, “extraordinary.” The Court should recognize the obvious: there are ways in which religious organizations are constitutionally different. Moreover, the differences are not exhausted by the rule that courts cannot make theological determinations (although that rule is relevant here too). Forcing the Catholic Church to accept women priests might require no such determinations--simply a ruling overriding the Church’s clear tenet. Yet everyone conceded it would be unconstitutional. At bottom, then, religious organizations have a distinct constitutional freedom to be able to determine who is qualified to serve as a minister.
Friday, September 16, 2011
Religion and Inequality
Political scientist Tobin Grant, who writes at Christianity Today Online, sums up interesting research he and others have done on the positive correlation between a nation's income inequality and its level of religious identification. The CT post also links to the fuller research. The U.S. fits the pattern because, although wealthier than economically advanced nations of secularized Europe, it has much higher income inequality (comparable to "Uganda, Jamaica, Cameroon, and Cote d'Ivoire") and much higher religious identification.
The research undercuts the claim that the poor seek the consolation of religion--and the claim that becoming wealthy tends to make one less religious (because, say, one feels more self-sufficient). "In unequal societies, the rich are also religious. By some measures, the wealthy grow more religious and the poor become less religious where there is higher inequality."
That is, neither do the wealthy across the board remain (or become more) religious: the wealthy in more unequal societies do so. With the appropriate caveats about drawing clear conclusions from the data, Grant says "[o]ne possible explanation for this pattern" is that religions--some religions--justify the inequality: "religions in unequal societies are more likely to seek out the rich young ruler, not the widow with only a few copper coins."
Tom
Tuesday, August 16, 2011
SCOTUS Blog Post on Gay Marriage, the Prop 8 Case, and Religious Liberty
The SCOTUS Blog is running an online symposium on Perry v. Schwarzenegger and Windsor v. United States, the cases challenging state and federal provisions limiting civil marriage to opposite-sex couples. My contribution is here (more are coming from a variety of contributors). Although I express sympathy for same-sex marriage as a matter of wisdom and policy, I argue that "[t]o say that same-sex civil marriage should be recognized does not mean, of course, that judges should require it under the Constitution":
In making that distinction, one could raise arguments about proper methods of constitutional interpretation, or warn about political blowback that aggressive judicial decisions can trigger (as even some pro-choice observers have remarked about Roe v. Wade). I focus, however, on a different reason for the Court to tread gently in Perry: the religious liberty of traditionalist objectors to gay marriage, and how legislative recognition of marriage may be a better vehicle than judicial rulings for balancing religious liberty and gay rights.
I recap my argument (made at greater length here) that the strongest arguments for same-sex marriage--respect for conduct central to personal identity--themselves call for strong religious-liberty accommodations. I argue that judicial declarations of same-sex marriage, as in California, have been (and are likely to be) a less hospitable context than legislation for factoring in countervailing religious-liberty limits. This provides a reason to prefer legislative handling of the marriage issue, and for voters in California to overturn same-sex marriage until they could be confident the religious-liberty concerns would be addressed.
Tuesday, August 9, 2011
And Mark Hatfield, RIP
In addition to John Stott, another hero to evangelical Protestants died in recent days: Senator Mark Hatfield. There were almost no openly declared, non-Southern evangelicals in Congress in the mid-1970s, and so Hatfield (like John Anderson) was someone to whom my Midwestern Republican evangelical family pointed with pride, even when he turned against Vietnam while they still defended it. Christianity Today describes his set of passionate faith-based beliefs and touches on why almost no politician today reflects the same mix:
For nearly four decades, perhaps American evangelicals' most prominent and admired politician was a man associated with liberal politics, one of the country's leading voices against the Vietnam War and military spending, and a critic of the nascent religious right.
As the Vietnam era waned, Hatfield maintained his opposition to military funding, especially nuclear arms. But he was also staunchly pro-life, introducing the first constitutional amendment on abortion, and joining Rep. Henry Hyde in prohibiting federal funding for such procedures. But as his influence as a senior senator grew—he twice became chairman of the powerful Senate Appropriations Committee—his presence as an evangelical icon diminished somewhat.
"Part of the issue is the political parties hardened in the mid to late '70s," said [David] Swartz, whose history of the Evangelical Left will be published by University of Pennsylvania Press next year. "It wasn't clear where they would come out on abortion, for example. So an evangelical progressive could function in that earlier system better than they could later, in the '80s and '90s...."
And here's a reflection by an evangelical leader on Hatfield's "freedom and joy and humility" as a politician of Christian conviction. For those interested in church-state issues, Hatfield was also the prime legislative mover behind the 1984 Equal Access Act, which allowed religious student groups to meet on high school campuses on equal terms as other student clubs.
Tom
Wednesday, August 3, 2011
Minimalist Exemptions and Religious Progressives
Rick's posts about contraception coverage and the healthcare law point to the calls by, among others, Steve Schneck and Michael Sean Winters for a much broader exemption for "religious employers" than the exceedingly narrow one that the Obama HHS Department is proposing. The proposed exemption, drawn from state laws mandating employer insurance coverage of contraception, only treats an organization as a "religious employer" eligible for accommodation if the organization, among other things, "has the inculcation of religious values as its purpose" and "primarily serves persons who share its religious tenets" (each prong must be satisfied--including two additional ones). As Rick and others have pointed out (and I argued here), this reflects an indefensibly narrow vision of religion as an insular activity of preaching to members. It leaves unprotected virtually all social services, certainly those that do not involve explicit preaching or attempts to convert. (Ironic, since often opponents of religious social services complain that those entities mix in proselytization with the help they provide.)
I'm particularly interested in the attitude of religious liberals or progressives (Christian/Jew, Catholic/Protestant, etc.) toward such a minimalist approach to religious conscience. As a political matter, they may well be the crucial group for preserving the religious liberty of traditionalist groups when it's under assault. (I realize that the Catholic Church itself often confounds neat categories of "traditionalist" and "progressive," but many Catholics, as well as other religious believers, end up sorting into these outlooks.) Traditionalists will often have insufficient votes themselves, and they likely will get little sympathy from secular liberals who oppose both their moral position and the religious faith from which it ultimately stems. But religious liberals, although they mostly disagree with traditionalists on contraception or (say) same-sex marriage, may at least--should at least--sympathize with the sense of devotion and call that leads traditionalists to their positions.
And religious liberals should be deeply disturbed by the definition of "religious employer" that has been peddled in the contraception-funding context. The definition conflicts with a common, even central, tenet of progressive Christianity: that the message of Jesus is not (or not only) about otherworldly salvation, but is about serving the needy with the love of Christ, often without explicitly preaching, proselytizing, or (in the words of the narrow exemption) "inculat[ing] religious values." Similarly, liberal Christians frequently affirm the provision of service ecumenically to all persons, again without seeking to get them to "confess Christ" or join the church--in the exemption's words, "share its tenets"--in order to be recipients of Christian love. If a prominent Christian fundamentalist said that a liberal social service was not Christian or religious because it didn't explicitly preach or try to convert people, religious liberals would fire back. They should fire back about this exemption language too. Even though the narrow exemption may coincide with the beliefs of many religious progressives on contraception, it rests on premises that utterly undermine religious mission as they understand it.
Tom
UPDATE: I should note that a variety of scholars from varying positions on the "progressive/traditional" spectrum have written in criticism of the narrowness of the exemption, including Susan Stabile, Rick, etc. I was referring mostly to mainline/liberal religious denominations and activist groups who should criticize it as well.
Thursday, July 14, 2011
Faith-Based Hiring Rights and Government Funding
Last month a group of civil-rights and religious organizations urged President Obama to rescind the Bush administration policies that had affirmed that faith-based organizations contracting with the government may consider individuals' religious commitments in hiring employees. Now comes an answer from a different coalition of organizations of varying faiths, providing varying educational and social services, who have written the President on why it is legitimate, not individious, for faith-based organizations to hire those with the same religious commitment, and why organizations should retain that right when receiving government funds to help them serve others. Here's a key passage:
Religious hiring by religious organizations is not a deviation from the great civil rights legacy of the United States but rather a distinctive and vital feature of it—vital because it protects the religious freedom of religious organizations. And religious organizations are a vital means by which religious individuals exercise their religious faith. To deny religious organizations the ability to be distinctively religious is to deny millions of Americans their unique religious voice. Religious diversity is enhanced when religious groups speak in distinctive religious voices rather than in a coerced monotone.
The signers include representatives from the U.S. Catholic bishops' conference, Jewish organizations, and evangelical agencies, and they range politically from the American Center for Law & Justice to the left-of-center group Sojourners. (HT: Stanley Carlson-Thies, whose Institutional Religious Freedom Alliance provides good leadership on this issue.)
My own defense of the right of funded religious organizations' to faith-based hiring is here (see pp. 37-42, 45-48, 53-56, 65-66), part of a general argument why such organizations should retain important rights of religious autonomy.
Tuesday, June 28, 2011
Another Recurring Theme in the Law and Religion Roundtable ...
... was the idea that Religion Clause doctrine ought to reflect multiple principles and considerations: various doctrinal principles like liberty, equality, and separation, as well as other considerations like history, pragmatic effect, etc. Both Marc deGirolami and Alan Browstein presented significant projects from this perspective. Both of them recognized, I think, that multi-factor approaches give up a degree of predictability (and discretion-constraining force?) compared with approaches that emphasize one or two factors. But they emphasized that such approaches (a) take into account more relevant values and also (b) make plain the costs that are involved when judges choose some values over others (as they must) in any particular case.
Conference participants said very good things about both projects but also raised some good questions for the authors. Here's a question for Marc: I get the sense that in your calculus of factors among which judges must inevitably (and "tragically") choose in a given case, you don't give a lot of weight to the factor of having a predictable, clear rule for future cases. Why shouldn't that be an important consideration? Or am I wrong that it doesn't figure in or emerge from your approach?
Tom
Amicus Brief in Ministerial-Exception Case: Institutional Church-State Separation and the History of Disputes over Clergy Selection
Rick Garnett, Carl Esbeck (Missouri Law), Kim Colby (Christian Legal Society), and I filed this amicus brief last week in Hosanna-Tabor Lutheran School, the pending Supreme Court case about the "ministerial exception" from antidiscrimination laws. Two of the brief's important points are: (1) There is a core meaning of "separation of church and state" that ensures separation and distinction between the institutions of church and state and autonomy for the church (and for the state, actually) in its core functions. (2) This arrangement of freedom/autonomy/separation for religious institutions is inseparable from the long history of disputes over government efforts to take a role in the selection of clergy -- from the investiture controversy to today's ministerial-exception issue. (We also have something to say about why teachers at religious schools should, in a great many cases, be treated as "ministers.")
We think that the separation-of-institutions argument may appeal to justices, and others, across the spectrum of views on the contested issues of church and state. We're encouraged in that by the fact that our brief has as signatories the National Association of Evangelicals, the strict-separationist Baptist Joint Committee on Religious Liberty, and Professor Eugene Volokh, who is no automatic vote for the religious institutions' side in Religion Clause cases. (Ours and other briefs in the case so far are posted here.)
Here's an excerpt from the summary of argument:
The ministerial exception, at issue in this case, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Reasonably constructed and applied, the ministerial exception not only helps civil decision-makers to avoid becoming entangled in essentially religious questions; it also, and even more importantly, protects the fundamental freedom of religious communities to educate and form their members. Although this may prevent individuals in some cases from suing for discrimination, it rests on the overriding principle that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law‘s corrective reach. The civil authority lacks competence to intervene in such matters, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdictional power.
Tom
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