The Court has ruled, 7-2, that the state of Missouri violated the Free Exercise Clause when it disqualified Trinity Lutheran Church, because it was a church, from a general program under which it could have applied to receive state funds to purchase recycled tires and resurface its playground. The Court held that "[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.... [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."
A few initial thoughts:
1. It's a strong win for equal participation of religion, and free religious choice, in government benefits. For one thing, this is the first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding. Rosenberger (1995) involved a university program of funding student organizations to engage in speech; the Court there held that the particular program created a limited public forum for speech, from which religious viewpoints could not be excluded. The Court has refused--and still does--to treat government funding programs for substantive policy purposes (education scholarships, K-12 vouchers, etc.) as creating forums for speech. So this case, relying on the Free Exercise Clause, is an important step in preventing states from singling out religious schools for exclusion from school-choice programs. Most previous decisions had merely allowed equal inclusion of religious entities/persons; Trinity requires it.
It's also strong because the vote is 7-2 and includes Kagan and Breyer (although the latter concurred in the judgment only). The once-dominant strict separationist position that barred aid broadly to religious organizations, especially to houses of worship, is represented only by Sotomayor and Ginsburg. Trinity gives further confirmation of the sea change that has happened in aid cases over the last 30 years: a strong tide away from no-aid separationism and toward equal participation in aid programs--which I think, on the whole, also serves the values of choice and freedom in matters of religion.
Finally, the majority narrowly reads Locke v. Davey (2004), which approved (7-2 the other way!) the exclusion of "devotional theology" students from a broad program of state-funded college scholarships. The broad readings of Davey--that denial of funding is simply not a burden on religion--are now decisively rejected. Instead, the Court emphasized that the denial there was based on a particular use of funds (for pursuing a degree in devotional theology) and that Davey had many ways of including religious elements in his state-funded education: he "could use his scholarship to attend a religious college," includnig a "pervasively religious" college, "and take devotional theology courses there," as long as he didn't pursue a major. Davey might now be narrowed to its facts; it may only involve exclusions of clergy education (which the Court discussed a lot in the Davey opinion); at the very least it is a much smaller obstacle now to suits challenging the exclusion of religious institutions or their students from generally available aid programs.
2. In important ways, the state-religion issues have bypassed the aid cases. It's important that there is now such a strong consensus against broad exclusions of religious institutions from government aid. But since about 2010, the action in religious liberty cases has shifted to conflicts between government regulation and religious conscience or identity, as exemplified in the cases over same-sex marriage (cert granted today in the Masterpiece Cakeshop case), the Obama HHS contraception mandate, and exclusions of student religious groups that requires standards of belief or conduct for their leaders (CLS v. Martinez, 2010). If religious groups or individuals can participate in benefit programs on equal terms, but those terms regularly include general conditions that conflict with their religious convictions or identity, then not much has changed in practice. So the location of the fights between traditionalist religious organizations and their more secular, separationist, or progressive counterparts has shifted to another part of the battlefield. Trinity has something to say about those fights to the extent they involve government benefits: the decisions rests on the proposition that "the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,'” meaning that application of, say, nondiscrimination laws to deny a religious organization benefits (like tax-exempt status) does create a free exercise burden. But the main questions in those fights--such as whether the government's regulation is generally applicable or (if RFRA is involved) serves a "compelling interest"--are different from those in Trinity.
3. The decision is strong, but it scope is uncertain. Trinity says that the state cannot deny aid on the ground of the recipient's religious status, character, or identity; the remaining question is whether it can deny aid on the ground that it will be used for religious purposes (this is the ground of some of the state exclusions, although not others). If religious uses can still be singled out for exclusion, then states will still be able to deny K-12 vouchers to religious education, since a voucher inevitably covers the religious element of schooling.
Trinity leaves this question open. Footnote 3 in the majority opinion expressly does so. Justices Thomas and Gorsuch did not join that footnote, so it reflects only four votes rather than six. But Justice Breyer, in concurring in the judgment, also said he was deciding only the question of exclusion from public health and safety benefits and was "leav[ing questions concerning] other kinds of public benefits for another day." (And he thinks that including religious schools in K-12 vouchers actually is forbidden; see his dissent in Zelman (2002).) Plus the two dissenters, Sotomayor and Ginsburg, presumably will not vote to extend Trinity to forbid exclusions based on religious use rather than religious status.
That leaves Thomas and Gorsuch, who each wrote concurrences (and joined each other's) suggesting that they would strike down the singling out of religious uses for exclusion. Thomas noted, approvingly, that the majority opinion seemed to confine Locke v. Davey to the very narrow context of "ministerial training." Gorsuch likewise suggests Davey is limited to ministerial training, but his opinion is more extensive and, like other separate opinions he wrote this term, announces he will make his intellectual and rhetorical marks on the Court:
[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? ... Often enough the same facts can be described both ways....
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward belief (or status).... I don’t see why it should matter
whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.
For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke v. Davey.... [C]an it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion’s claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here.
Thomas and Gorsuch are only two votes, so the question whether states can single out religious uses for exclusion remains open. But Trinity nevertheless sends a clear signal: the Court will treat exclusions of religion from general benefits program with far more skepticism than the deference given in Davey. And if it takes the next step, striking down exclusions of religious uses, Gorsuch's attack on the status-conduct distinction will provide at least a section of the road map.
Thursday, June 8, 2017
Professor Kathleen Sullivan once wrote that the First Amendment's provisions on religious freedom and equality reflect "a substantive recognition that there is more than one path to heaven and not as many as once thought to hell." To which Michael McConnell responded: "That is not the disestablishment of religion. It is the establishment of Unitarian-Universalism." (From The Bill of Rights in the Modern State 124 n.50 (U. Chicago Press 1992).
That phrase applies to Bernie Sanders' criticism of Russell Vought, nominee for deputy director of the Office of Management and Budget, for having posted online statements that Muslims "stand condemned" and "do not know God because they have rejected Jesus Christ his Son." From Huff Po:
Such a statement is “indefensible, it is hateful and Islamophobic, and an insult to over a billion Muslims throughout the world,” Sanders told the room. He asked Vought, who sat facing him, if he thinks his past comments are Islamophobic.
“Absolutely not,” replied Vought, a former vice president of the conservative Heritage Action for America. “I’m a Christian, and I believe in a Christian set of principles based on my faith. That post … was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation.”
Sanders interjected, “Do you believe that people in the Muslim religion stand condemned?” ...
“Senator, I’m a Christian ... ,” Vought began again.
“I understand that you are a Christian!” Sanders shouted. “There are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?”
Vought said he respects all people and repeated that he wrote his post based on being a Christian. That was it for Sanders.
“I would simply say, Mr. Chairman, that this nominee is really not someone who is what this country is supposed to be about,” Sanders said, gathering up his papers. “I will vote no.”
Believing that one's religion is the only way to God is quite common and surely should not in itself disqualify someone from office. Making that alone the basis for disqualification violates the principles of the Free Exercise Clause, the Religious Test Clause (for federal offices like those in OMB), and the Establishment Clause--by, as McConnell pointed out, establishing universalism as the only permissible religious opinion for federal officials.
(As I understand the context of Vought's views, he was defending Wheaton College's decision to fire Larycia Hawkins, a professor, for stating that Muslims "worship the same God" as Christians do. In that context Vought, a Wheaton alum, argued that the college could fire her because one cannot worship the same God--not even deficiently--without approaching God through Christ. My own views on that question, expressed here on MOJ, are almost certainly closer to Prof. Hawkins's than to Mr. Vought's. But the issue is not which view of God and salvation is theologically accurate; it is whether Vought should be disqualified from this office for his view.)
Religious beliefs criticizing or condemning other faiths are relevant in some cases. It would be relevant if Vought had written that Muslims as a group cannot be trusted as citizens because of their religion (claims we unfortunately see all too often). But that form of criticism/condemnation concerns civil status and participation, not religious salvation. The civil equality of religions under the First Amendment does depend upon officials avoiding blanket statements that members of a faith cannot be trusted as citizens, because it's short step from such statements to treating people unequally in civil matters. (Probably a short enough step to justify voting against any nominee who wrote that Muslims can't be trusted.) But Vought said that Muslim citizens are entitled to equal respect; he made clear, in his post and his attempts to answer Sanders, that he was speaking about theological not civic matters--about the nature of God, worship, and the way to salvation. And the First Amendment rests upon bracketing such theological disputes, neither punishing nor favoring people for their varying views. Without such bracketing, those with non-pluralistic beliefs on ultimate matters will themselves face civil restrictions and discrimination. A belief that another person is condemned in an ultimate sense might lead one to mistreat or disrespect them in civic matters, but surely not necessarily so. People with such non-pluralistic theological beliefs live and work with others respectfully day after day in myriad settings (partly because they believe that it is not a matter of comparative merit--that all, even nominal Christians, are condemned in an ultimate sense unless they rely on Christ).
If the nominee is to be working in a field where his or her attitude toward another faith is relevant, even a publicly expressed belief about ultimate matters could well interfere with performing the job. You certainly could vote against confirming an ambassador to Saudi Arabia who expressed Vought's view about Muslims and salvation. But unless I greatly misunderstand things, beliefs about ultimate salvation are irrelevant to ability to do the work of the OMB. Thus to vote against someone for OMB is simply a penalty on his belief, a bare religious test for a federal office, and a statement that universalism is the orthodox view on religious salvation.
Fear and prejudice toward Muslims is a significant problem in our country. But the resistance to it should take the form of guaranteeing civic equality, and countering true hate, not imposing disabilities solely for views about theological matters. Belief that a religion is false, and cannot lead one to God or ultimate salvation, can coexist with respect for the equal dignity of its members. If we assume that the two cannot coexist, we will start reinjecting the government into controversies about ultimate matters that our religious-freedom tradition has wisely sought to avoid.
Tuesday, May 9, 2017
On May 16, I'll be one of the panelists at an event on Fordham's Manhattan (Lincoln Center) campus, entitled "And Justice for All? Religious Liberty in a Pluralistic World." My terrific co-panelists are Sr. Carol Keehan, executive director of the Catholic Health Association; Asma Uddin, of the Center on Islam and Religious Freedom; Ani Sarkissian, professor at Michigan State specializing in global issues of religion, politics, and religious freedom; and moderator Vince Rougeau of Boston College. The sponsor is Fordham's Center for Religion and Culture. If you're in NYC, come to Lincoln Center from 6-8 p.m. for a symphony of contrasting and complementing themes!
Thursday, May 4, 2017
President Trump issued his
executive order on religious liberty today, with a good-sized rollout featuring the Little Sisters of the Poor etc. There was much fear on the left and hope on the right. However, the order itself has little or no effect in concrete terms. It avoid issues concerning LGBT rights and religious liberty; it concentrates only on the Johnson Amendment and the contraception mandate.
The order's first section is a general statement in favor of religious liberty, which will be comforting to religious conservatives but has no operative effect.
On the Johnson Amendment--concerning withdrawal of tax benefits for organizations that endorse a candidate for office (e.g. through an official statement by a clergy leader)--all the order does is forbid IRS action against a religious organization in a situation that "has not ordinarily been treated" as a case of endorsing a candidate. In other words, don't treat religious organizations any worse than secular organizations. But there's no pattern of cases in which that's happened. This just confirms the status quo, under which the IRS has not been going after churches or anyone else for candidate endorsements. In theory, it might even allow the IRS to start going after both equally--although that seems very unlikely in this adminstration.
On the contraception mandate, all the order says is that HHS and other relevant agencies should "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections." The Supreme Court already ordered something similar in the Zubik/Little Sisters case. And Trump's order gives no direction on what the the new regs should do. The agencies will likely give the objectors some relief, assuming that his agency appointees set the course. But the executive order adds little to that.
Religious conservatives will take comfort from the generally positive attitude toward their religious liberty claims. But in its operative effects, this nowhere goes out on a limb for them. The issues concerning LGBT/religious-liberty conflicts remain, and this gives little indication Trump will go out on a limb on those. (Admittedly, he could be trying to take smaller steps first.)
ADDENDUM: It should be noted that in the Rose Garden ceremony, the President stated, with no tone of irony in his voice, that "We will never ever stand for religious discrimination. Never ever." This from the President whose travel-ban executive order began with the campaign pledge (never withdrawn) of a "total and complete shutdown of all Muslims entering the United States."
Sunday, February 19, 2017
Here's a news release concerning the latest brief filed by the Religious Liberty Appellate Clinic that I supervise at St. Thomas. It's an amicus curiae brief in Sterling v. United States, a cert petition involving the application of RFRA in the military. The petitioner, Marine LCpl Monifa Sterling, "was court-martialed for, among other things, objecting to a superior’s order to remove from her work station three small signs displaying a Bible verse." (It's Isaiah 54:17: "No weapon formed against me shall prosper.") Whether or not LCpl Sterling should ultimately win her case, the Court of Appeals for the Armed Forces wrongly cut off her claims at the threshold, making some bad errors in holding that the order to remove the verses had not "substantially burdened" her religious exercise. As the news item explains:
The courts held that Sterling had not been burdened because she had not shown that the order violated any religious tenet that she display signs, because she had not given clear notice that the signs were religious, and because she had not asked for a religious accommodation through the military’s administrative processes.
The certiorari petition and the St. Thomas clinic’s amicus brief argue that all these grounds for denying RFRA’s application are inconsistent with the statute and precedents. Moreover, they argue, the Supreme Court must review the decision because these grounds would broadly restrict the rights of military personnel—Sikh, Jewish, Christian, and others—to follow their religious practices in the military when it would not undercut combat-readiness or good order.
“The [military courts’] narrow conception of burden,” the clinic’s amicus brief states, “wrongly rejects claims at the threshold and neuters RFRA’s requirement—equally applicable in the military—that substantial restrictions on religious activity must be justified by compelling governmental interests.”
... The organizations joining the brief include several religious denominations; the National Association of Evangelicals; the Christian Legal Society (co-counsel); and the Chaplain Alliance for Religious Liberty, which represents religious organizations certifying 2,600 military chaplains, about 50 percent of those currently serving in the armed forces.
My student Andrew Hanson, class of 2018, did a great job doing much of the drafting on this brief.
Although the odds are always long on a cert petition, keep an eye out for this case. The petition was filed by Paul Clement; there are several other amicus briefs in support; and the justices ordered the government to filed a response after it initially waived responding.
