Reflecting on the striking and troubling embrace by so many who should (or do) know better of a false narrative about Indiana's RFRA (and the many other state laws like it), Ross Douthat notes, as several others have, the dramatic extent to which religious liberty has become controversial, contested, and vulnerable. And, in order to highlight this extent, he poses a number of questions for Indiana's critics:
1) Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?
2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?
3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?
4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?
5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?
6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?
7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?
These are all questions that those of us in the First Amendment academy and on the law-and-religion conference circuit encounter regularly. Too often, the answers are not encouraging.
Learn more here about the entities and funding sources behind much of the current effort to delegitimize the RFRA model and religious exemptions more generally.
Friday, March 27, 2015
MOJ readers are likely familiar (here, here, here (Religion Clause blog), here, etc.) with the long-running saga of Loyola High School in Montreal to resist a government mandate that it teach a general ethics-and-culture course in a way that, the School believes, conflicts with its Catholic character.
Well, the Supreme Court of Canada's decision is finally here. (Congrats to my friend Victor Muniz-Fraticelli for being cited!) At first, the reports were that Loyola won big -- and it does seem that they won -- but, getting down into the weeds, it's still troubling, I think, what the Court seems to agree the government is allowed to demand. Here is an interesting account ("What Did Loyola Really Do?").
Here is the holding:
The Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary given the statutory objectives. As a result, it did not reflect a proportionate balancing and should be set aside. The appeal is allowed and the matter remitted to the Minister for reconsideration.
There's more explicit balancing talk here -- and, later, more cites to Aharon Barak and Habermas -- than we are used to, probably, in American cases, but . . . so far so good. Catholic schools may teach Catholicism (pretty much?) as if it is true. Early on in the majority opinion, there's this:
Freedom of religion means that no one can be forced to adhere to or refrain from a particular set of religious beliefs. This includes both the individual and collective aspects of religious belief. Religious freedom under the Charter must therefore account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.
Also good. Read the whole thing!
Thursday, March 26, 2015
Here's a nice review by Will Seath, at the Fare Foreward site, of Nicole Garnett's and Peg Brinig's new book, Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America. A taste:
Lost Classroom, Lost Community’s sobering last chapter asks readers to imagine the implications of cities without Catholic schools; the loss of quality social capital-building education in traditional neighborhoods, leaving families unable to afford alternatives to poor quality public schools struggling in the wake of others seeking refuge away from their declining neighborhoods. “Our cities may well survive (indeed, they may have to survive) without Catholic schools,” Brinig and Garnett conclude, “but our evidence suggests strongly that they would be better off if they did not have to do so.”
Here is an op-ed of mine, which ran today in the South Bend Tribune, in which I try to respond to what I regard as some of the misconceptions (and, frankly, the misinformation) about RFRA-type laws (like the one that was signed into law by Gov. Pence, in Indiana, today.) In a nutshell:
In fact, the act is a moderate measure that tracks a well-established federal law and the laws of several dozen other states. Contrary to what some critics have suggested, it does not give anyone a “license to discriminate,” it would not undermine our important civil-rights commitments, and it would not impose excessive burdens on Indiana’s courts. . . .
The act’s standard is applied in many jurisdictions across the land and it has long enjoyed support from across the political spectrum. This standard is not new; we have plenty of evidence about how it works. We know that courts have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections. Fighting invidious public discrimination is, American courts agree, a public interest of the highest order. Contrary to the concern quoted in the recent Tribune piece, a business owner or medical professional who invoked the act as a “license” to engage in such discrimination would and should lose. The act creates a balancing test, not a blank check. . . .
