I wonder if the legal impact of these two religion-related cases will prove to be less significant than the political impact. For example, the striking exaggerations and even misrepresentations from many commentators and activists about the reasoning, holding, and implications of the Hobby Lobby case have already prompted calls to repeal or gut RFRA. These calls, as I see it, are striking in part because they depart so dramatically from the bipartisan consensus of just a few decades ago about the value of accommodating religious liberty and also because they fail to appreciate that the vast majority of those who benefit from RFRA and RFRA-type laws are not "corporations" but are members of vulnerable and unpopular religious minorities.
I continue to think that the Town of Greece case is best seen as a "preserve the status quo" case. The Second Circuit had proposed a departure from the Court's longstanding approach to legislative prayer, set out in the Marsh decision. The justices overwhelmingly -- even the dissenters -- insisted that Marsh remains the standard, even as they disagreed about its application. The denial of cert in the Seventh Circuit graduation-in-a-church case suggests that the Court was not looking to remake its religious-symbols doctrines or explicitly jettison the battered "endorsement test."
The Hobby Lobby ruling, assuming its reasoning is taken seriously in the lower courts, confirms what was said several years ago (unanimously) in O Centro: RFRA is to be taken seriously. That is, Congress meant what it said when it declared it to be the national policy that substantial burdens on religious belief and practice need to be well justified, under a demanding standard. If the federal government can accommodate religion, the Act says, then it should. The fact that accommodation involves some costs and inconvenience, and some departures from uniformity, is not an excuse for not accommodating. This is an important principle, and Hobby Lobby's primary significance is that it affirms it. But, again . . . the Court had already said this. What Hobby Lobby does that could be "new" is that it does so in a more charged, "culture wars" context ("War on Women" rhetoric means anti-Citizens United passions) and so prompts (as O Centro did not) calls to embrace the "same rules for everyone no matter what" standard that was, to so many on the left, offensive when proposed by Justice Scalia in Smith.
The "parade of horribles" being suggested by some commentators, and by the dissent, is very unlikely to come to pass. We will not see courts allowing for-profit businesses to ignore nondiscrimination laws, or health-and-safety rules, or general tax obligations. Hobby Lobby is an unusual case, in part because Hobby Lobby is an unusual company and in part because the contraception mandate is an unusual rule (one that, it's worth remembering, was not imposed by Congress itself). Those who claim that this ruling means that big companies will start discriminating on the basis of race or trying to avoid paying minimum wage know better. RFRA has been on the books for more than 20 years. If there was a lot of interest in bringing these kinds of cases, we would have seen some.
Tuesday, July 1, 2014
Here is a link to a conversation I had, with Prof. Elizabeth Sepper (and callers), on the NPR program "On Point." And, here is a podcast about the case that I did yesterday with Michael Moreland, Micah Schwartzman, and Eric Jaffe.
Saturday, June 28, 2014
I recently returned from the 5th (!) Annual Law and Religion Roundtable, which met this year on the lovely campus of Washington University in St. Louis. (Thanks very much to Prof. John Inazu and his colleagues for being such excellent hosts!). We read and discussed about 20 works-in-progress and also had time for conversation and re-connecting over meals . . . and -- for some -- the World Cup. (There was, no surprise, a lot of attention paid on Thursday morning to the ScotusBlog "live feed", as the announcement of a decision in Hobby Lobby would have been, it is safe to say, of some interest to many present.)
MOJers Michael Moreland and Kevin Walsh were also there, and I'd love to hear /read their impressions. My own sense -- and Paul Horwitz presented a working paper that explored this possibility in more detail -- is that the law-and-religion/church-state/First Amendment controversies of recent years, which have had to do with hot-button and culture-war issues like abortion, contraception, sexual orientation, and marriage, have introduced (or maybe just surfaced and exposed) some tensions and edges that might have been absent (or at least hidden) during the previous decade or so, or perhaps even during the 20+ years since RFRA was enacted. (Which is certainly not to say that the conversations among scholars in the field does not remain civil, collegial, engaging, and earnest.) The debate is not limited to the (no small thing!) challenge of working out a balance among (i) concern for religious minorities whose practices can be burdened through discrimination, indifference, or failure to accord sufficient respect; (ii) the longstanding and continuing place of religious expression, values, institutions, believers and themes in public and political life; (iii) the desire to avoid "divisiveness" in our increasingly pluralistic society; and (iv) a respect for the integrity, autonomy, and -- in a sense -- "separateness" of religion. More so now than before, it seems to me, "religion" (and religious accommodations, religious believers' claims and arguments, etc.) is seen by some as a problem to be managed, a threat to be guarded against, and/or an obstacle to be overcome. If "religion" *were* seen in this way, it would (naturally?) be regarded as less deserving of respectful accommodation and as less welcome in civil society, outside the closely cabined "private" realm.
The folks at the Becket Fund have posted a detailed response to a recent piece that ran recently (and to which I contributed some quotations) in the American Prospect. The response states, "Much of the article is fair and balanced. But one of its core claims—that the Becket Fund has been drifting from its founding principles—misses the mark and misunderstands religious liberty. . . "
Wednesday, June 25, 2014
As part of the Auburn Applied Theology series, a new collection of short essays, called Losing Faith in our Democracy, is out. The report is billed as a "theological critique of the role of money in American politics," and the contributions come from Protestant, Catholic, and Jewish theologians. I have not read the essays, though I quickly skimmed the ones by William Cavanaugh and Charlie Camosy, which I recommend.
My own view is that, generally speaking, the "there's too much money in politics" claim is more often asserted than established -- how much, after all, is the right amount?; that the urge to regulate campaign speech, spending, and contributions usually reveals and implements a goal of securing an advantage for one's preferred political outcomes; that complaints about the role of "corporations" or about the "fiction" that "corporations are people" too often fail to deal with the reality that not only big businesses but also charities, unions, tribes, churches, political parties, and interest groups also use the corporate form; and that claims about the "distorting" effects of money on politics usually pay insufficient attention to the many other ways in which the content and quantity of political speech and activism are shaped, inflated, dampened, and distorted. But, like the man says, "that's just me, I could be wrong." (I should not, by the way, that the above observations do not apply to the Cavanaugh and Camosy essays in the report, which raises important issues.)
Monday, June 23, 2014
The White House is, according to reports, working on an executive order that would ban sexual-orientation discrimination by federal contractors. Fr. Tom Reese and Michael Sean Winters have detailed posts at NCR discussing the matter.
