Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 15, 2017

Podcast on Religious Freedom, with Leith Anderson

By Thomas Berg

There is now online a podcast conversation on religious freedom that I recently did with the Rev. Leith Anderson. Leith is the president of the National Association of Evangelicals, a wonderful and prolific writer on Christian living, and the former senior pastor of Wooddale Church in the Twin Cities. He has been interested in religious-freedom issues, and commenting thoughtfully on them, for some time. It was great fun to have this conversation with him. A sample comment of mine, in response to Leith's question "Why should Christians work on protecting people of other faiths in the U.S.?":

Two kinds of reasons. One is a matter of principle: Christians know that a commitment of faith, a relationship with the Divine, is a matter of the heart; it can’t be real and valid if it’s coerced by government. Human dignity means that the soul should be free to seek and respond to God, even if its response is mistaken. The second reason is pragmatic: If Christians want to preserve freedom for their own religious exercise, they have to recognize it for others. You won’t get sympathy for your plight if you don’t show it for others.  

Friday, November 10, 2017

Falsehoods on Barrett (Will) Continue

By Thomas Berg

Two days ago, Rick offered reflections on the successful confirmation process of Amy Barrett to the 7th Circuit. This morning in  the New York Times, former federal judge Shira Scheindlin (now on the board of the Lawyers Committee for Civil Rights under Law) serves notice that the false assertions against Barrett will continue long after her swearing-in. Scheindlin's op-ed attacks several of Trump's lower-court nominees and appointments, including, sadly but I guess inevitably, Barrett.

There's the same old, willfully misleading claim that "[i]n a 1998 article, [Barrett] criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith." For the umpteenth time, what Barrett and her co-author criticized (in a very indirect, gentle way) was Brennan's apparent suggestion that he would stay on a case and rule in a way that violated his faith. Barrett wrote then, and said this fall, that in case of an unavoidable conflict, the Catholic judge should follow her faith--and the law--by using the option of recusal that the law itself offers. That is the exact opposite of that Scheindlin and the other critics imply: that Barrett advocated ruling based on one's faith rather than the law. A former federal judge, more than anyone, knows better.

There's other wrong or distorted stuff in there, too, about Barrett's views on precedent. The same stuff that's been rebutted before.

So far as I can tell (and I haven't looked at it closely), Trump's nominees include a few strange and dubiously qualified names. (As well as some very strong ones, including David Stras, whose nomination to the 8th Circuit remains tied up.) Barrett is plainly among the very strong ones. But some of the critics will keep trying to stick her in the dubious group, not because of what she would actually do on the court of appeals, but because of their fears that (1) she is a dangerous symbol of a highly qualified woman who takes her Catholic faith (including the controversial parts) seriously and (2) she might get on a short list for the next step up.

Tuesday, November 7, 2017

Removing Eugenicists' Names

By Thomas Berg

A committee at the University of Michigan is studying whether to rename an academic building currently named for geneticist and cancer researcher C.C. Little, the university's president in the 1920s, who was also a leading eugenicist and president of the American Eugenics Society. At a September forum accompanying a student rally calling for the renaming, a UM history professor reviewed Little's involvement:

[P]rofessor Martin Pernick opened the panel by discussing the topic of eugenics in a broad sense and what role Little played in it. Pernick made the argument that being in support of the idealistic form of eugenics was not cause enough to remove a person’s name from the building they were named after.

      “Eugenics meant a lot of different things to a lot of different people,” Pernick said. “Charles Darwin’s cousin, Francis Galton, defined it as the use of science to improve human heredity. Who can argue with that? Using science to improve things.”

      Pernick explained Little’s interpretation of eugenics was what merited a renaming of the building named after him. According to Pernick, the type of genetics Little supported was one that promoted the advancement of those who held power in society in the early 20th century, through any means necessary.

      “The kind of eugenics that Little promoted included all of the American Eugenics Society’s most controversial methods: compulsory sterilization, ban on interracial sex, selective immigration and restrictions by ethnicity,” Pernick said.

In an interview, university president Mark Schlissel says he has no opinion yet and is waiting for the committee report, which he notes is charged with suggesting criteria for these renaming debates:

[O]ne of the more interesting and challenging criteria is: You can imagine there are many ideas that in today’s context seem ridiculous, that they’re so out of step with our current values and the current social norms in our society that they make no sense. However, when you’re thinking about a naming, you have to actually go back in time to when the naming happened, and then figure out in the context of those times, how do you judge that person? Were they typical of their era, or were they a terrible outlier that, regardless what the era was, you wouldn’t want to associate yourself with their values? That’s a very hard thing to do because I’m sure 100 years from now there are going to be things that we all do and think and care about today that our society a century from now is going to think about really differently. That’s happened all throughout our history, there’s no reason to think it’s not going to keep happening. 

How should one shaped by the criticism of eugenics found in Catholic social thought assess a debate like this? (1) Welcome the fact that the wrongs of eugenics have been brought to campus attention through the kind of student advocacy that we've seen concerning other historical wrongs? (2) Suspect, and complain, that condemnations of eugenicists will be selective (e.g. entirely omitting Margaret Sanger or Clarence Darrow) and overly narrow (e.g. underplaying its threats to human dignity that are not tied to racial/ethnic discrimination) and will simply rest on the currently dominant political views on campus? (3) Some other assessment?

Monday, October 30, 2017

"Religious Freedom in a Polarized Age"

By Thomas Berg

In the last month, I've given a lecture, "Religious Freedom in a Polarized Age," as the Lin Lecture at St. Mary University Law School in San Antonio, and as the Veninga Lecture at the Wisconsin Institute for Public Policy and Service. Recordings of those lectures are, respectively, here and here. A summary paragraph:

      In [recent high-profile religious liberty] cases, divides over religious liberty increasingly trace, and even intensify, the divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support LGBT nondiscrimination laws, you reject any religious-liberty challenges to those laws; likewise if you support immigration restrictions. Both left and right do it.

      This is a bad development: that’s my thesis today. We must renew our commitment to religious freedom for all. That proposition has two parts. First, we should place a strong value on religious freedom, which I define as the ability of people to live consistently with their religious beliefs and identity, presumptively free from government penalty for doing so. We have to balance that freedom with other values, but it should receive heavy weight in the balance. Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and conservative Christians. Today more than ever, Americans need to affirm what Justice Oliver Wendell Holmes called “freedom for the thought we hate.”

Masterpiece Cakeshop and the Free Exercise Clause Under Smith/Lukumi

By Thomas Berg

As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other  amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith.  We argued in short, that

Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.

Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation. 

We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:

      In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....

      ... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.

      Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.

Saturday, September 16, 2017

Amicus Brief in Masterpiece Cakeshop: Protect Both Sides

By Thomas Berg

Doug Laycock and I have filed a brief in the Masterpiece Cakeshop case on behalf of amici who include a variety of religious and religious-freedom organizations: the Christian Legal Society, the LDS (Mormon) Church, the National Association of Evangelicals, the Union of Orthodox Jewish Congregations, the Queens Federation of Churches, and others. The brief has several important emphases, which are to one extent or another distinctive--sometimes quite different from other briefs in the case. Here are four representative passages:
 
From the statement of interest of amici: 
 
     Amici are religious organizations who accept that same-sex civil marriage is the law of the land. But some deeply religious Americans, including some of amici’s members, cannot in good conscience assist with same-sex weddings. Now that the Court has protected the liberty of same-sex couples, it is equally important to protect the religious liberty of these conscientious objectors. Most of these amici are involved in ongoing efforts, mostly unsuccessful so far, to negotiate legislation prohibiting sexual-orientation discrimination while providing religious exemptions. 
 
     Laws protecting the liberty of both sides are extremely difficult to enact in our polarized political environment; too many on each side resist liberty for the other. These amici believe that religious liberty is a God-given right, that it reduces human suffering, and that it is an essential means by which people with deep disagreements live together in peace. A fundamental purpose of the Constitution is to protect the liberty of both sides, and especially so when powerful factions seek to deny that liberty. 
 
From the summary of argument, parts I and II:
 
     The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.
 
     This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding. 
From the summary of argument, part III:
 
     Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 
 
     A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.
 
     B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....
 
     D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.
From argument section IV, re lack of a compelling governmental interest on these facts:
 
     [Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.
 
     Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.
 
     Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.] 

Friday, September 8, 2017

Democrats for Life Statement on the Questioning of Amy Barrett

By Thomas Berg

Democrats for Life have issued a statement criticizing Democratic senators for the questioning of Amy Barrett in her confirmation hearing. Some excerpts:

     Democrats For Life of America (DFLA) expresses its disappointment with Democratic senators and interest groups who are attacking federal court of appeals nominee Amy Barrett for her personal religious views on the dignity of human life at all stages.

     Vigorous questioning of President Trump's judicial nominees is needed to ensure that if confirmed to the court, they will follow the law and protect civil rights and liberties.  But Senator Dianne Feinstein (D-CA) stepped over a crucial line when she told Barrett in Wednesday's confirmation hearing: "The dogma lives loudly within you. And that's of concern when it comes to big issues." 

     Feinstein really means one issue, of course: abortion.  And what she denigrates as "dogma" is the Catholic teaching that a human being is a person with dignity from the moment of conception--a belief held by millions of Americans, including believers of all faiths and nonbelievers alike. 

     But Senator Feinstein has no basis for holding this "dogma" against Professor Barrett.  The nominee repeatedly made it clear that as a judge on a lower federal court, she would follow her oath to decide cases not by her personal views, but according to the law as set forth by the U.S. Supreme Court.  Sen. Feinstein had no evidence with which to question those assurances.  So instead she suggested that Barrett's statements could not be trusted because "the dogma lives loudly within [her]." ...

     Unbelievably, senators and interest groups have attacked Barrett with a 20-year-old article she co-wrote--not about abortion, but about Catholic judges conscientiously opposed to the death penalty!

     That article noted the strong Catholic teaching against capital punishment, and it said that a Catholic judge who opposed issuing a death sentence might have to remove ("recuse") herself from the case, which is a well-established practice. The article made it clear that recusal would be the proper step: The judge may not stay on the case and rule according to personal beliefs instead of the law. 

     Yet Democratic senators and supposedly "progressive" interest groups are claiming that Barrett said she would impose her beliefs upon the law—when, in fact, she said the exact opposite.

     In other words: Barrett said that a judge should never contradict the law but should remove himself from a case if he, in conscience, believes that ordering the execution of a human being would be immoral.  And Democratic senators are expressing "concern" about that.  When did our party--which once stood up for the conscientious claims of civil-rights marchers--become so fearful and dismissive of personal moral conscience? ...

     Democratic leaders remain so committed to protecting abortion from even minimal threats that they'll trample on other principles to do so.  A nominee repeatedly makes it clear that she won't impose her personal beliefs as a judge--that she'll remove herself from a case if she faces a conflict of conscience.  But Democrats still reject her because they think that she has strong personal religious beliefs ("dogma").

     It's another example of how the Democratic Party loses its way when it focuses on protecting rigid abortion-rights ideology to the exclusion of all other principles.  That same misguided focus has caused the party to lose all branches of the federal government and, in the last eight years, 1000 legislative seats around the country....

Thursday, August 31, 2017

Dumb Anti-School-Choice Sound Bite

By Thomas Berg

OK, this may be shooting fish in a barrel, but I can't resist....

Illinois has passed a new school funding law that embodies a significant compromise deal by Democrats and Republicans. Among other things, the law reworks the funding formula to rely less on property taxes, thereby increasing the share of funding allocated to poorer districts. It also includes a school-choice measure: a 5-year pilot program of tax credits for people who donate to provide scholarships for modest-income students to attend private schools. Democrats wanted the first of these; Republicans wanted the second. My first reaction, as a temperamental and philosophical moderate, is that it's great simply that the two sides came together. My second reaction is that both of these measures are good for the poorest students: on the one hand, money matters, and on the other, Catholic schools (the largest group of private schools) do an especially good job of educating disadvantaged children.

But some Democrats (I think some Republicans too) didn't go along. They were willing to vote against the funding-allocation changes, and see them defeated, in order to stop a relatively modest school-choice program. One of them, Rep. Will Guzzardi, D-Chicago, offered one of the sillier sound-bites against school choice that I've heard. He told the Chicago Sun-Times: that the program was "unconscionable" because:

“Eventually hundreds of millions of dollars of our public money is going to be diverted away to give tax breaks to very wealthy people and big businesses who are contributing to private school scholarships and that’s wrong to me."

Yes, it's unconscionable to provide a tax break to line the pockets of wealthy people with money that they must give to assist poor people. Indeed, that whole tax deduction thing for gifts made to charities that help the needy--what an unconscionable giveaway to the privileged. 

If you oppose school choice, make your arguments under the real issues: how to get the best educational quality, how to teach kids respect for differing races or religions, etc. Don't mindlessly thrown in progressive-sounding but irrelevant phrases like "tax breaks to very wealthy people and big business."

Friday, August 25, 2017

"An Open Letter from Christian Scholars on Racism in America Today"

By Thomas Berg

This open letter is now up at The Gospel Coalition, an evangelical website. Signatories are invited; I believe it's well considered, and well expressed, on a crucial issue at an important juncture. A few snippets:

What we have seen in Charlottesville makes it clear once again that racism is not a thing of the past, something that brothers and sisters of color have been trying to tell the white church for years.

     ​Racism should be denounced by religious and civic leaders in no uncertain terms. Equivocal talk about racist groups gives those groups sanction, something no politician or pastor should ever do. As Christian scholars, we affirm the reality that all humans are created in the image of God and should be treated with respect and dignity....

​     Even as we condemn racism, we recognize that the First Amendment legally protects even very offensive speech.... [Moreover, ...] No one is beyond redemption, so we encourage our fellow believers to pray that members of these groups will find the truth, and that the truth will set them free.

Monday, July 10, 2017

Letters on State RFRAs: Archive Here at MOJ

By Thomas Berg

Over the last few years, in the controversies over various proposed state religious freedom restoration acts (state RFRAs), a group of scholars supportive of RFRAs in general have written memo-type letters to state legislatures. Given the often simplistic and distorted public debate, the letters' main purpose has been to set the record straight on what RFRAs are likely to do: their main effect would be to protect classic religious minorities in a wide variety of circumstances, far more than the handful of instances involving small-vendor objectors to weddings etc. (on which the precedents indicate the RFRA results would be uncertain).

Those letters are archived here at MOJ. To go directly to the post collecting the letters, click here. You can also find them now by clicking on the "Resources" link at the top of the MOJ page (then, on the Resources page, look under "Links"). 

The letter signatories do not always support the particular RFRA-related legislative proposal being considered; for example, some signatories to 2014 Arizona letter took no position on the amendments to the preexisting Arizona RFRA that triggered that controversy. (It also seems worth mentioning, given the context of the controversies, that the signatories have always included supporters of same-sex marriage, including yours truly, as well as skeptics or opponents.)

Hopefully this archive will be a useful resource for scholars, advocates, and decision makers of varying views.

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