The good folks at The Becket Fund have the story. Supreme Court review would now seem likely.
Thursday, September 17, 2015
8th Circuit rules against the mandate-"accommodation", creating "circuit split"
Tuesday, September 15, 2015
Churches' tax exemptions and religious freedom
I have a short contribution to a discussion at The Washington Post on churches' tax exemptions and religious freedom. Here's a taste:
Many of the recent calls to tax churches rest on the premise that churches owe at least some of their resources to political authorities — to governments — who can decide whether or not to collect and use those resources for their own purposes. In this view, exempting churches from taxation is seen as somehow subsidizing religion. But it is a mistake to equate “not taxing” with “subsidizing,” even if in some sense the effect is the same. Governments do not refrain from taxing religious institutions merely because it is politically convenient or socially acceptable to support them. They do and should continue to refrain from taxing churches because their power over them is limited, because “church” and “state” are distinct and because religious freedom is fundamentally important.
Sunday, September 13, 2015
The New York Times on religious freedom and "anti-gay bigotry"
It's revealing, and also a sign of things to come. In this overheated editorial, the New York Times slams the proposed First Amendment Defense Act. As some readers might know, John Inazu, Michael McConnell, and I have suggested that the FADA should be revised to focus more directly on protecting religious believers and religious institutions (schools, hospitals, universities, social-service agencies, etc.) from being penalized in various ways for acting on the basis of their religious commitments regarding marriage. (Ryan Anderson and MOJ's own Robby George disagreed with our suggestion, here, while Rusty Reno endorsed our approach, here.)
The Times piece directs some of its criticisms at some of the same features of the current form of FADA that Inazu, McConnell, and I were concerned about. (Yikes!). But, make no mistake: In the view of the Times (and of a great many other "thought leaders," I fear) the FADA is objectionable in principle -- precisely because it protects religious institutions -- and not because of possible applications or questions about its scope):
In other words, it would use taxpayers’ money to negate federal anti-discrimination measures protecting gays and lesbians, using the idea of religious freedom as cover.
For example, a religiously affiliated college that receives federal grants could fire a professor simply for being gay and still receive those grants.
What the Times means by "using the idea of religious freedom as cover" is "allowing religious institutions to act in accord with their missions and commitments." Yes, religious freedom -- in fact, not as "cover" -- includes, in some instances, the right to engage in what would otherwise be "discrimination." But, as I've written many times, it is not necessarily wrongful discrimination -- discrimination that should bother the liberal state or its taxpayers -- for a religious institution to take religious commitments into account when conducting its affairs. There's no reason (no good reason, anyway -- there are plenty of bad ones) to insist that religious institutions somehow become unworthy of cooperating with the government simply because they hire for mission, in accord with their religious commitments.
Friday, September 11, 2015
Letter asking President Obama to continue protecting religious-staffing rights
A little while back, there was a lot of attention paid to a letter from Americans United for Separation of Church and State and signed by more than 100 other organizations urging the President to abandon his administration's (I think wise) decision to continue allowing religious public-funding recipients to hire for mission. The letter was poorly reasoned and reflects (as I've discussed elsewhere) an unfortunate but widespread confusion about wrongful discrimination.
Now, Stanley Carlson-Thies of the invaluable Institutional Religious Freedom Alliance -- which has been fighting hard for religious-staffing rights for years -- has sent the President a letter of its own (which I signed). It's available here: Download Letter to President to maintain OLC memo 9 10 2015 (1).
Please read it (and share widely).
Pope John Paul II on Sept. 11, 2001
I re-read this today:
I cannot begin this audience without expressing my profound sorrow at the terrorist attacks which yesterday brought death and destruction to America, causing thousands of victims and injuring countless people. To the President of the United States and to all American citizens I express my heartfelt sorrow. In the face of such unspeakable horror we cannot but be deeply disturbed. I add my voice to all the voices raised in these hours to express indignant condemnation, and I strongly reiterate that the ways of violence will never lead to genuine solutions to humanity’s problems.
Yesterday was a dark day in the history of humanity, a terrible affront to human dignity. After receiving the news, I followed with intense concern the developing situation, with heartfelt prayers to the Lord. How is it possible to commit acts of such savage cruelty? The human heart has depths from which schemes of unheard-of ferocity sometimes emerge, capable of destroying in a moment the normal daily life of a people. But faith comes to our aid at these times when words seem to fail. Christ’s word is the only one that can give a response to the questions which trouble our spirit. Even if the forces of darkness appear to prevail, those who believe in God know that evil and death do not have the final say. Christian hope is based on this truth; at this time our prayerful trust draws strength from it.
With deeply felt sympathy I address myself to the beloved people of the United States in this moment of distress and consternation, when the courage of so many men and women of good will is being sorely tested. In a special way I reach out to the families of the dead and the injured, and assure them of my spiritual closeness. I entrust to the mercy of the Most High the helpless victims of this tragedy, for whom I offered Mass this morning, invoking upon them eternal rest. May God give courage to the survivors; may he sustain the rescue-workers and the many volunteers who are presently making an enormous effort to cope with such an immense emergency. I ask you, dear brothers and sisters, to join me in prayer for them. Let us beg the Lord that the spiral of hatred and violence will not prevail. May the Blessed Virgin, Mother of Mercy, fill the hearts of all with wise thoughts and peaceful intentions.
Today, my heartfelt sympathy is with the American people, subjected yesterday to inhuman terrorist attacks which have taken the lives of thousands of innocent human beings and caused unspeakable sorrow in the hearts of all men and women of good will. Yesterday was indeed a dark day in our history, an appalling offence against peace, a terrible assault against human dignity.
I invite you all to join me in commending the victims of this shocking tragedy to Almighty God' s eternal love. Let us implore his comfort upon the injured, the families involved, all who are doing their utmost to rescue survivors and help those affected.
I ask God to grant the American people the strength and courage they need at this time of sorrow and trial. . . .
Wednesday, September 9, 2015
Archbishop Fiorenza on religious freedom
I've been really blessed, in recent years, with the opportunity to get to know Archbishop Emeritus Joseph Fiorenza (Galveston-Houston). He's a holy and thoughtful man. I happened to come across this Red Mass homily he delivered, in New Mexico, on religious freedom. It's well worth a read. Here's a bit:
It seems to me there will be more of these efforts to restrict the exercise of religion to within church walls. The secular world and the sacred are not in themselves opposed to one another. After all, Jesus said, "render to Caesar the things that are Caesar's, and to God the things that are God's." The real problem is a form of secularism, called profane secularism which seeks to exclude God from all public life and confine Him to the church or synagogue or mosque. The growing profane secularization of our society will seek to impose on religious organizations a form of legislative dictatorship in violation of the traditional respect both federal and state legislators have had for religious freedom as an important ingredient to freedom of worship.
This tradition reaches back to President Thomas Jefferson who wrote in 1804 to the Ursuline nuns in New Orleans where the first Catholic hospital was established that their charitable works could continue in accord with their own rules "without interference from civil authority". This pledge of our third president is in jeopardy if current secular trends infringe on the freedom of religion.
Kaczor reviews Tollefsen on Lying (updated)
At Public Discourse, Prof. Christopher Kaczor reviews Prof. Christopher Tollefsen's new book, Lying and Christian Ethics. (The review includes links to a lot of items having to do with the Planned Parenthood videos and the arguments over the morality of the tactics used to get them.)
Here, by the way, is Kaczor's defense (written about 5 years ago) of these tactics when the same debate was raging about an earlier video-sting. He concluded:
Tollefsen’s principles would seem to prove too much. They would seem to exclude undercover sting operations undertaken by law enforcement. They would exclude infiltrating a terrorist cell. They would exclude spies working to foil enemy battle plans. They would exclude investigative journalism that cultivates trust with the object of investigation. It could be that morality demands an end to all such activities, but it seems more likely that such activities are ethically permissible for serious reasons. By the same reasoning, it seems that the basic strategies undertaken by Live Action need not involve intrinsically evil acts that must always be avoided whatever the cost.
And, here is a post that I did, around the same time.
UPDATE: On Twitter, Ryan Anderson takes me to task for quoting from the older Kaczor piece and not from the review (that is the subject of this post and to which I linked). In the current review, Kaczor says, among other things (as Ryan points out): "Tollefsen has caused me to seriously reconsider my own earlier stated position..., and for that I am grateful." His review concludes with this:
On Tollefsen’s view, perfect love for all human beings and perfect obedience to the Father also enjoin us to never assert falsely. Lying and Christian Ethics provides a powerful case for the thesis that false assertion violates the goods of personal integrity (love of self), sociality (love of neighbor), religion and truth (both pertaining to obedience to and love of God). Readers inclined to think lying is sometimes justified owe it to themselves to read this book.
This is, of course, an important question, and "serious[] reconsider[ation]" is always a worthwhile exercise.
Lee Strang to be installed as Stoepler Professor of Law and Values
Hearty congratulations to Prof. Lee Strang for the well-deserved honor of being named the John W. Stoepler Professor of Law and Values. Lee will be delivering his installation lecture on September 21, on "Public Universities as Places of Constrained Debate: A Home for People of Good Will, Including Religious People." More here:
Professor Strang is the author of more than 20 law review publications, a constitutional law casebook, as well as several book chapters and book reviews. He has published in the fields of constitutional law and interpretation, property law, and religion and the First Amendment. Among other scholarly projects, he is currently editing the second edition of his casebook for LexisNexis, writing a book titled “Originalism’s Promise and Its Limits,” and authoring a book on the history of Catholic legal education in the United States. He frequently presents at scholarly conferences and participates in debates at law schools across the country. He is also regularly quoted in the media. Professor Strang was named the College’s director of faculty research in 2014. In fall 2015 he will be a visiting scholar at the Georgetown Center for the Constitution, where he will complete his book on originalism.
Outstanding.
Tuesday, September 8, 2015
Rod Dreher on Kim Davis, religious-freedom challenges, and picking battles
Rod Dreher's piece at The American Conservative ("What Hill Do We Die On, Then?") is worth reading and taking seriously, I think. I do not for a moment agree with those who seem to think that Kim Davis should lose (a) because she's been divorced or (b) automatically because she's a public official, and I believe that, even in cases like hers, it should be possible to craft exemptions and extend accommodations. That said, Dreher seems on the right track when he says:
So, if Kim Davis isn’t a hill to die on, what is? It’s a fair question. Broadly speaking, my answer is this: when they start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology. This is a bright red line — and it’s a fight in which we might yet win meaningful victories, given the strong precedents in constitutional jurisprudence.
But court decisions do not come from some Platonic realm; judges are shaped by the same cultural forces that shape all of us. Many, many Americans — certainly those in the media, and other opinion-shaping institutions — see our stance as motivated solely by bigotry, and therefore morally illegitimate. These judges, and the elected representatives who appoint them, will lose the ability to understand why “bigotry” should be tolerated. . . .
There's more.
St. Joseph the Worker . . . pray for us!
I'm a day late (I was still reveling -- sorry Michael S. -- in Notre Dame's crushing victory over Texas) but . . . from St. Joseph County, by the St. Joseph River, this member of St. Joseph Parish, whose kids attend St. Joseph Grade School, St. Joseph Pre-School, and St. Joseph High School says . . . St. Joseph the Worker . . . pray for us!
P.S.: Have you read Laborem Exercens recently? Why not?
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