Among the major sources of protection for religious liberty in America today are statutes like the Religious Freedom Restoration Act (RFRA) and state-level counterparts, and one of the most important (and confused) questions under RFRA is what constitutes a sufficient "burden" on religious freedom to trigger the federal government's duty to offer a "compelling" justification for the restriction. The issue is raised in a cert. petition, Navajo Nation v. U.S. Forest Service, in which tribes challenge the spraying of treated/"reclaimed" sewer water for snowmaking purposes on federal lands that they hold sacred and on which they worship. But the Ninth Circuit decision rejecting the Native Americans' claims extends far beyond that case and articulates a stringent test that would cut off many claims, including in cases that were central objects of Congress in enacting RFRA. That is the assertion of an amicus brief of several religious liberty scholars, supporting the cert. petition, that I helped organize and that is distinguished by the names of two other MOJers, Rick Garnett and Michael Perry. A brief by religious organizations, available at the same site, makes similar points. Check them out not just if you're interested in Native-American religious-freedom issues, but also if you're interested in the scope of religious freedom for organizations and individuals generally.
Wednesday, February 11, 2009
"Burdens on Religion," Native Americans and Federal Lands, and Broader Implications
Friday, February 6, 2009
Internal 9th Circuit Rulings on Same-Sex Spouses
I haven't found the opinions yet, but two judges of the Ninth Circuit, Reinhardt and Kozinski, in separate rulings have included same-sex marriages within persons entitled to federal spousal benefits under the employee-benefits program for public defenders that (as I understand) each circuit administers. Judge Kozinski construed the statutory language to include same-sex spouses so as to avoid a significant constitutional question under Lawrence v. Texas, while Judge Reinhardt went further and held that the part of the Defense of Marriage Act that defines marriage for federal benefits violates equal protection (as opposed to, I assume, the parts of DOMA that shield states from having to accept same-sex marriages performed in other states). Arthur Leonard of New York Law School has a description here. These are not regular panel opinions, just single-judge internal-grievance rulings, but they will still get a lot of attention.
Monday, February 2, 2009
Brooks and Dionne on Christian Realism for Today
David Brooks and E.J. Dionne had a very engaging discussion Thursday night at Georgetown on the enduring relevance of Reinhold Niebuhr's Christian Realism for American public life. About 230 people turned out for the event, which was moderated by Krista Tippett of public radio's "Speaking of Faith" program and well organized by the Berkley Center for Religion, Peace, and World Affairs at Georgetown. I had a hand in initiating the event.
Niebuhr's combination of political activism with a sense of irony, humility, and self-examination, grounded in a belief in original sin, has always been attractive to both liberals and conservatives. Brooks saw the connection to conservatism in the fact that "the core of conservatism is epistemological modesty," the proposition that society cannot be fundamentally changed except through a long series of careful steps each attentive to unintended consequences. Dionne answered that the main strain of American liberalism has always been a "principled pragmatism" that seeks progressive goals through careful, non-utopian means. We can all think of recent examples of each side forgetting these necessary elements of realism. That's why Niebuhr's writing is relevant now as much as ever.
Brooks also said something that should resonate here: that the primary "relevance of religion to politics is in the view of human nature" it sets forth. For Niebuhr, the distinctive contribution of Christianity is that it simultaneously takes a very high view of human beings' dignity but a very somber view of their sinfulness.
Overall, it was a very engaging evening with a Catholic and a Jew speaking on the relevance of the most prominent mainline Protesant ethicist of the 20th century.
At a dinner after the event, I heard quite a bit about a new book that might interest readers, The Making of a Catholic President: Kennedy vs. Nixon 1960, by Shaun Casey, who teaches at Wesley Seminary in D.C. If the stories that Prof. Casey told from the book are any indication, it's a great read.
Tuesday, January 27, 2009
David Brooks and E.J. Dionne on Reinhold Niebuhr and Christian Realism
Readers in the D.C. area might be interested in a program this Thursday, January 29, that I've helped organize:
David Brooks and E.J. Dionne, Jr. will discuss the lasting impact of Reinhold Niebuhr and Christian Realism on American political and theological ideas with public radio host Krista Tippett . They will address how Christian Realism presents an enduring option for many aspects of our political life, from foreign policy and the war on terror to issues about religion's role in politics. As Barack Obama , the 44th President of the United States takes office, Brooks and Dionne will take the opportunity to reflect both upon the past presidential election and the future problems and dilemmas that the next administration will face, in light of Obama citing Niebuhr's teachings as significant in shaping his own s and governance. Krista Tippett of American Public Media's Speaking of Faith will moderate the conversation and portions of the program will appear as a conversation on the program.
It's at 6:30 p.m. on the Georgetown campus (details in the link). Hope to see a few MOJ readers there.
Tom
Thursday, January 22, 2009
Lunch Program on Waugh and Orwell
Readers in the Twin Cities area might be interested in an upcoming lunchtime program at St. Thomas's law school on the writers George Orwell and Evelyn Waugh and their approaches to public life. The time is 12:30 p.m. next Tuesday January 27, and the speaker is David Lebedoff, author of a delightful book called The Same Man, a dual biography of and meditation on Waugh and Orwell. Lebedoff claims that despite their vast differences -- conservative Catholic versus agnostic socialist -- Waugh and Orwell shared features in their moral outlooks that are actually more important in the modern world. (A claim more striking, even, than that there are commonalities among MOJ's bloggers!) In any event, the narratives in the book are, as I said, delighful, and Lebedoff, a lawyer, is an excellent storyteller. First Things calls the book "fascinating"; the New York Times Book Review calls it "enjoyable and provocative." Come if you're a fan of Waugh or Orwell or (like me) both.
There will be lunch too. The event is sponsored by the Murphy Institute for Catholic Thought, Law, and Public Policy at St. Thomas. More details here.
Friday, January 9, 2009
But We Try Harder
MOJ did in fact finish second to Jonathan Turley in the Professors' Sites category of the ABA Journal's "Blawg 100." Thanks to all who voted!
Thursday, December 11, 2008
What Does the Evangelical Leader's Resignation Mean?
From Christianity Today:
Richard Cizik resigned Wednesday night as vice president for governmental affairs of the National Association of Evangelicals (NAE) during a week of growing uproar over his comments that he is shifting his views on same-sex unions.
Cizik later apologized and said he was opposed to civil unions as well as gay marriage, but it's not clear how convincing the retraction could be. The resignation of Cizik, the strong evangelical advocate for anti-global-warming policies, could end up meaning any of several things. (1) The movement to mobilize evangelicals to take steps against global warming will lose credibility because one of its main voices has been discredited for suggesting he was moving outside the evangelical consensus against same-sex unions. (2) This is a sign of how strong that evangelical consensus remains. Or (3) Cizik's (temporary?) shift is a sign of where more and more evangelicals will go in the future. Or all of the above.
On the same radio program, Cizik also expressed openness to government-supported contraception to reduce abortions, saying that evangelicals "are not Catholics who oppose contraception per se." But the Christianity Today story suggests (though it does not explicitly say) that it was the civil-unions remark that caused the greatest disturbance.
Tom B.
Monday, November 17, 2008
Article on Church Autonomy and Government Benefits
Whether religious organizations can retain freedom to define their missions while participating in government educational or social-service funding, or tax exemptions, or other benefits programs, is one of the most important -- and challenging -- issues they face these days. I've posted an article on it, forthcoming in the Georgetown Journal of Law and Public Policy, from an excellent conference held last March in cooperation with the Federalist Society (which also included our own Patrick Brennan). The article deals with the foundational challenge of how to speak of autonomy when cooperating with government, and then develops some lines of argument for use in important recurring situations. Here's part of the abstract:
This Article makes the case that religious organizations ought to be able to challenge, in a number of important situations, conditions that exclude them from generally available benefits because of their religious character or practices important to their religious identity. Such exclusions implicate two important Religion Clause values: they pressure the organization to forego its choices in religious matters, and they undercut the ideal, based in church-state separation, of a religious sector operating without government interference or favoritism. The best understanding of church-state separation, I argue, calls not for excluding religious schools or social services from generally available aid, but for allowing them to receive aid for the services they provide without pressuring them to change their religious character. Conditions on benefits can place presumptively impermissible burdens on organizations' religious choices, and they can intrude on core organizational decisions protected by a proper understanding of church-state separation. I apply these arguments to challenge three actual or proposed conditions on benefits: (1) rules that bar government-funded education or social-service programs from considering religion in hiring staff; (2) restrictions on a tax-exempt organization's intervention in political campaigns to the extent they bar a clergy member from expressing moral-political views in her capacity as religious leaders; and (3) proposals, advanced by some commentators, to deny tax exemptions or funding to organizations that restrict clergy positions based on sex or other disapproved grounds.
Tuesday, November 11, 2008
Comment on Nelson Tebbe on Exclusions of Religion from Government Aid Programs
I've posted a short paper on SSRN that will appear soon in the University of Pennsylvania Law Review's online format PENNumbra. It's a comment on a longer piece by Nelson Tebbe (Brooklyn Law School). Here is the abstract:
Among the most important recent questions under the Religion Clauses has been whether and when government programs that support private activities, such as education or social services, may exclude religious institutions or activities that include religious content. Nelson Tebbe's article, Excluding Religion, argues that government should have "considerable latitude" to make such exclusions, even though he concedes they will discourage citizens from choosing religious options. In this response, published in PENNumbra (the University of Pennsylvania Law Review's online companion), I argue that Tebbe's justifications for excluding religion fail if the protection of citizens' religious choices against government influence is a central purpose of the Religion Clauses. I then turn to the key question whether preserving religious choice is indeed central, and I argue that it is, based on precedent, on traditions and concepts associated with the Religion Clauses, and on the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.
Thursday, October 16, 2008
"Thomas More on Trial" Conference
Check out what looks to be a very interesting conference November 7-8 on the trial and last letters of Thomas More, sponsored by the University of Dallas's Center for Thomas More Studies. The speakers at the "retrial" and broader assessment of More include eminent legal historian Richard Helmholz (U. Chicago) and Fifth Circuit Chief Judge Edith Jones. Looks like a lot of CLE credits too!
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