A little while ago, Bob Cochran and the crew at Pepperdine hosted a great conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?” (Here, here, and here are some earlier MOJ posts on the conference.) I was honored to be asked to respond to Prof. Koppelman's invited lecture (which is based on his forthcoming book, Defending American Religious Neutrality), but the festering miasma of evil that is contemporary air travel delayed my arrival so that I was too late to share my response with the conference. So, thanks to SSRN, several months later, here it is:
This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
Here is a link to the complaint filed this morning by the University of Notre Dame, challenging the Administration's "preventive services" mandate. Here is an excerpt from the announcement by Fr. Jenkins, the University's president, to the Faculty and Staff:
. . . Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services. Many of our faculty, staff and students -- both Catholic and non-Catholic -- have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs. And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents. We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so.
This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name. . . .
Here is the statement of John Garvey, the President of Catholic University.
In my view, these lawsuits -- which are the result of the Administration's overreach, and not of any effort by religious institutions or leaders to "pick a fight" -- are efforts to vindicate the country’s constitutional and traditional commitments to religious freedom and pluralism.
These latest lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act, and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate. This mandate imposes a serious and unnecessary burden on many religious institutions’ commitments, witness, and mission. It purports to require many religious schools, health-care providers, and social-welfare agencies to compromise their institutional character and integrity. In a society that respects and values diversity, as our does, we should protect and accommodate our distinctively religious institutions, and welcome their contributions to the common good.
These lawsuits are not asking the courts to endorse the plaintiffs’ religious views, only to respect and accommodate them. Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values. In a pluralistic society, people will often disagree about values and policies, and it will not always be possible to accommodate those who object in good faith to regulatory requirements. At the same time, a society like ours – with a Constitution and federal religious-freedom protections like ours – will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case. We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law. True, there will sometimes be tension and conflict, and trade-offs and compromises. Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.
The folks over at Catholic Moral Theology are kicking off a week-long series of posts on the same-sex-marriage question. Here is the first one. Stay tuned!
My friend and colleage, Prof. Carter Snead, is the new Director of Notre Dame's Center for Ethics and Culture. And, he just sent me the Call for Papers for the Center's 13th annual Fall Conference. This year's conference, "The Crowning Glory of the Virtues: Exploring the Many Facet of Justice," looks to be outstanding. A wide, interdisciplinary, and diverse range of accomplished and interesting scholars are already "on the bill." See you in South Bend, Nov. 8-10!
Prof. Michael Stokes Paulsen (St. Thomas) has posted a new paper, "The Priority of God: A Theory of Religious Liberty." Check it out. Here is the abstract:
Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth (or not) and whether society and state embrace the idea of religious tolerance (or not). It then argues that America's Constitution's religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals' and groups' pursuit of truth. This perspective illuminates many of the issues that have plagued interpretation of the First Amendment religion clauses.
My friend and colleague, Gerry Bradley, has an essay up, over at Public Discourse, about the understanding of faith and religion that was expressed by President Obama during his speech, a few years ago, at Notre Dame. A bit:
. . . The commencement address was full of musings about religious faith, and its tone and substance were remarkably faith-friendly. The president spoke winsomely of his own faith journey, and credited “the church folks” with whom he worked in Chicago as a community organizer with showing him the way to religious faith. Throughout his speech, Obama showed how the Christian tradition supplies him with a vocabulary for describing and understanding realities that he previously glimpsed without the eyes of faith.
The faith of which he spoke was not, however, the faith of our fathers. Therein lies the novelty of Obama’s initiative. He would protect the state from the church, not by privatizing faith, but by redefining it. In a bold and unprecedented challenge to the churches, Obama told believers, not what they believe, but what it means for them to believe it. . . .
Yesterday, May 17, was the anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, which ruled unconstitutional laws mandating racial segregation in schools. This anniversary is, of course, an occasion for celebrating our country’s progress; it's also a good time for reflecting on the fact that, for too many, Brown’s promise remains unfulfilled.
The Court in Brown did more than disapprove of discrimination. It also emphasized the vital importance of education to opportunity and equal citizenship. The justices called education ‘the very foundation of good citizenship’ and warned that ‘it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.’ If we hope to make good on the promise of Brown – and I believe we have an obligation to do so – we must pursue, in law and policy, creative and bold reforms in education. The strongest arguments for school choice, opportunity scholarships, charter schools, and so on are not merely arguments about efficiency and cost-saving, they are about equality and social justice.
In Brown, the Court challenged us to confront the connection between meaningful educational opportunities and equal citizenship in the political community. It is not enough to respond to that challenge by changing the racial composition of public schools’ student bodies. We must also change what is – and, too often, is not -- happening in these schools, challenge them to put the needs and futures of children above the preferences and comfort of teachers and administrators, and empower private, religious, and charter schools to participate fully in the shared enterprise of educating the public.
Michael Sean Winters calls it "neo-con constitutional theory" but I (or, maybe some would say "therefore"!) thought it was excellent. Here's the text; decide for yourself. Here's a bit:
We do not seek to defend religious liberty for partisan or political purposes, as some have suggested. No, we do this because we are lovers of a human dignity that was fashioned and imparted not by the government but by the Creator. We defend religious liberty because we are lovers of every human person, seeing in the face of every man and woman also the face of Christ, who loved us to the very end and who calls on us to love and serve our neighbor with the same love he has bestowed on us. We uphold religious liberty because we seek to continue serving those in need while contributing to the common good in accord with the Church’s social teaching and to do so with compassion and effectiveness through Catholic Charities, the largest private provider of human services in the State of Maryland. We do this because Archbishop John Carroll’s generation of believers and patriots bequeathed to us a precious legacy that has enabled the Church to worship in freedom, to bear witness to Christ publicly,and to do massive and amazing works of pastoral love, education, and charity in ways that are true to the faith that inspired them in the first place.
Winters' suggestion that statements like these sound too much in "constitutional law and political practice" and so are "better suited to a blog post than a sermon" seems wrong to me. To be sure, Winters is entirely right that any homilists' focus should always be on "preaching Christi crucified and risen," but I am afraid I cannot agree that there was anything at all bizarre, or even unwelcome, about the new Archbishop of Baltimore's eloquent instruction on the foundations, implications, and importance of religious freedom.
