The United States Court of Appeals for the Second Circuit has issued its latest decision in Bronx Household of Faith v. Board of Education of the City of New York. For lots of background on the case, which involves equal access to a limited public forum–public school classrooms–after hours for a religious organization that engages in, among other things, “worship,” there are several posts on the case in the MOJ archives. See also this post. The court found for the City, with a dissent by Judge Walker.
Writing for the panel majority, Judge Leval framed the case in these terms:
This appeal raises the question whether the Board of Education of The City of New York (the “Board”), in making the City’s school facilities available outside of school hours for use by outside users and subsidizing such use, may, in furtherance of interests favored by the Establishment Clause of the First Amendment, refuse to permit the holding of religious worship services.
The trouble ought to be evident already. What exactly are “interests favored by the Establishment Clause”? Are they the same as interests the violation of which would be unconstitutional? That can't be right. If they were such interests, then it would be unconstitutional for the City to permit Bronx Household of Faith to use its facilities. But it isn’t unconstitutional for the City to do so. So what are these “interests”? How is the City acting consistently with “its constitutional duties” here? What “constitutional duties”? The City has no “constitutional duties” to exclude this organization.
After resurrecting the hoary distinction between “expression” and “conduct” (never mind that the Free Exercise Clause protects “exercise”), the court continues:
the Hialeah ordinances [in the Lukumi Babalu case] were motivated by the city council’s disapproval of the targeted religious practice. The Board has no such motivation. There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services. Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion. This difference is of crucial importance in determining the reach of Lukumi’s reasoning that a burdensome regulation focused on a religious practice is constitutionally suspect and therefore subject to strict scrutiny. This reasoning makes perfect sense when the regulation’s focus on religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a particular religion or religious practice). On the other hand, it makes no sense when the regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in complying with the Establishment Clause….The Establishment Clause prohibits government from engaging in conduct that would constitute an establishment of religion, such as endorsing, or seeming to endorse, a religion. It is only to the extent that governmental conduct affects religion that the restrictive force of the Religion Clauses is operative. Accordingly, rules and policies designed to keep a governmental entity in conformity with its obligations under the Religion Clauses must of necessity focus on religious subject matter. If the focus is not religious, the Religion Clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.
(12-13, emphasis added). I see. So a municipality can exclude religious people and organizations from access on equal terms to a limited public forum such as a public school classroom if including them would constitute not only “endorsing” religion but also “seeming to endorse” religion.
What does it mean to “seem to endorse religion”? I’m reminded of triple inchoate crimes in criminal law, like attempting to attempt to solicit somebody to commit a crime. What government exclusion of religion would be impermissible under a standard that protects an interest against appearing or seeming to favor religion? The court says that it would not be constitutionally impermissible for the government to issue the following rules: “This city shall not adopt any rule or practice that constitutes an improper burden on the free exercise of religion, or that constitutes an establishment of religion.” Or, “No school or teacher shall compel any student to participate in religious exercises, or seek to persuade any student to alter his or her religious beliefs.” I don’t understand the point of these examples. Of course those rules would be permissible. Those rules reflect what the Religion Clauses actually prohibit, not what they “appear” or “seem” to prohibit.
There are other debatable features of the majority opinion, including the extension of Locke v. Davey, which involved state subsidies, to this limited public forum case. More to the point, however, appearance of endorsement is not the standard under the Establishment Clause as misguidedly interpreted by the Supreme Court even since the Allegheny case. But as I have explained before, the endorsement test, with its emphasis on hurt feelings, offenses taken (and given), and the delicacy of the perception of personal sensibilities is at least partly to blame for what is an “inevitable” and deeply regrettable bloating of the Establishment Clause.
Following up on our friend and good colleague Robert George’s contribution addressing the firing of the Mozilla Chairman, Brendan Eich, for exercising his Constitutionally protected rights to the detriment of no one, I would like to offer a simple complementary follow-up today to reawaken the responsibility of public duties held by Catholics and all people of good will. History informs us of our duties in public life.
In the law, history plays a prominent role as it does in so many other human enterprises. Members of society in general, and this includes Catholics, must keep in mind the lessons of the past so that the same mistakes and tragedies will not be repeated in the present day. In 1947, Christopher Dawson (about whom I have written before) discussed the issue of Catholics (and, I think, all people of good will) and the dangers of their remaining passive in the face of public duty. As he said, “they prove false to their own temporal mission, since they leave the world and the society of which they form a part to perish.” There is growing evidence that over the years we Catholics and other people of good will have trusted our leaders, neighbors, and fellow workers with their agendas about the nature of public life and have failed to respond out of right and duty. A part of this evidence is that the teachings of the Church that advance the common good and therefore the commonweal are no longer not only not welcome but not permitted. Timidity rather than embracing the counsel of Sacred Scripture, “be not afraid,” describes us accurately. The Eich firing is an illustration of the totalitarian juggernaut which indecorously brands him “anti-gay” when, in fact, he made a contribution to a particular political cause joining the ranks of many other fellow Americans who concluded that Proposition 8 was a cause they wished to support out of right and duty as citizens.
The law is a part of politics and public life in our society, but there is also mounting substantiation that not all views are welcome in public debate concerning the progress of law and legal regimes; moreover, there is clear indication that some views will be stamped out because they stand in reasoned opposition to the views held by others. In the current political and evolving legal climate that is taking our nation and our world in a dangerous direction, Dawson has further wisdom that serves as a catalyst to reawaken our public duty. Although he was speaking principally of developments in the academy of the late 1950s, his words apply to public life (including politics and law) as well:
[I]f Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in the Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them. We are still living internally on the capital of the past and externally on the existence of a vague atmosphere of religious tolerance which has already lost its justification in contemporary secular ideology. It is a precarious situation which cannot be expected to endure indefinitely, and we ought to make the most of it while it lasts.
Totalitarian juggernauts are malevolent, but they have a powerful will and they can prevail, even if only for a time, and eradicate any and all opposing views. This is why it is all the more important for all people of good will today, including faithful Catholics who believe and live what Christ’s Church teaches, to take seriously the thought of Edmund Burke that for evil to prevail in the world, all that is necessary is for good people to do nothing.
RJA sj
Thursday, April 3, 2014
Mozilla has now made its employment policy clear.
No Catholics need apply.
Or Evangelical Christians.
Or Eastern Orthodox.
Or Orthodox Jews.
Or Mormons.
Or Muslims.
Unless, that is, you are the "right kind" of Catholic, Evangelical, Eastern Orthodox Christian, observant Jew, Mormon, or Muslim, namely, the kind who believes your religious or philosophical tradition is wrong about the nature of marriage as the conjugal union of husband and wife, and the view now dominant among secular elites is correct. In that case, Mozilla will consider you morally worthy to work for them. Or maybe you can work for them even if you do happen to believe (or should I say "believe") your faith's teaching---so long as you keep your mouth shut about it: "Don't ask, don't tell."
You are disqualified from employment, however, if you reveal your alleged "bigotry" and "cause pain" by stating your convictions. And you are certainly disqualified if you do anything to advance the historic understanding of marriage as a conjugal union in the public square. You see, that's what Mozilla CEO Brendan Eich was discovered to have done---he made a contribution of $1000 to the successful effort to defend marriage in California in 2008. Like the majority of California voters, he thought it best for the state to retain its conjugal marriage law. Recently that historical fact came to light. And in less than a week Eich was gone.
You can bet its not just Mozilla. Now that's the bullies have Eich's head as a trophy on their wall, they will put the heat on every other corporation and major employer. They will pressure them to refuse employment to those who decline to conform their views to the new orthodoxy. And you can also bet that it won't end with same-sex marriage. Next, it will be support for the pro-life cause that will be treated as moral turpitude in the same way that support for marriage is treated. Do you believe in protecting unborn babies from being slain in the womb? Why then "you are a misogynist. You are a hater of women. You are a bigot. We can't have a person like you working for our company." And there will be other political and moral issues, too, that will be treated as litmus tests for eligibility for employment. The defenestration of Eich by people at Mozilla for dissenting from the new orthodoxy on marriage is just the beginning.
Catholics, Evangelicals, Orthodox Christians, Mormons, observant Jews, Muslims, and others had better stand together and face down the bullies, and they had better do it now, or else they will be resigning themselves and their families to a very unhappy status in this society. A very unhappy status indeed. When tactics of intimidation succeed, their success ensures that they will be used more and more often in more and more contexts to serve more and more causes. And standing up to intimidation will become more and more difficult. And more and more costly. And more and more dangerous.
Der Spiegel is running an interview with Justice Sotomayor keyed to the publication of the German version of My Beloved World (aka Meine Geliebte Welt). The interview concludes with some reflections on difficulties associated with having the final word on matters that are important to society. Because the Court's decisions are "final," it is hard for Justices in the majority to know that "there's a loser," "another side who is going to feel something negative about what has happened." And, the interview concludes, "[o]nce we decide, there is no more hope."
Perhaps something was lost in translation.
Surely the Supreme Court's supremacy does not extend to the elimination of hope. After all, spe salvi facti sumus; and that hope does not depend on the views of five out of nine.
"Be not afraid!" These were the words with which the heroic soon-to-be St. Pope John Paul II opened his pontificate. It is an encouraging challenge, and one that -- to me, anyway -- seems very timely.
Yesterday was the anniversary of his death. I remember, very clearly, that I was sitting in an auditorium at Indiana University, participating in a conference on the legacy and work of Chief Justice William Rehnquist, when someone interrupted to share the news that the Pope had passed away. He was, and remains, a hero of mine.
A number of MOJ bloggers contributed reflections on the legacy -- jurisprudential, theological, philosophical, political, etc. -- of Pope John Paul II. They might be worth re-reading this week (here, here, and here). And (or), it's really tough to beat Redemptor hominis (here).
Starting tonight, and continuing through Saturday morning, a number of legal scholars -- including our own Tom Berg and I -- will be presenting at a conference, at Harvard Law School, called "Religious Accommodation in the Age of Civil Rights." Here's the conference blurb:
Current controversies over marriage equality, antidiscrimination law, and the Affordable Care Act’s contraceptive mandate have raised conflicts between religious claims, on one hand, and LGBT equality and women’s rights, on the other. The conference seeks to deepen our understanding of the competing claims by bringing together nationally recognized scholars in the fields of sexuality, gender, and law and religion.
I am hoping (and praying) for a civil and respectful set of conversations, unclouded and untainted by the unfair and uncharitable characterizations and accusations that have, unfortunately, seemed to dominate discussions about religious exemptions, public-accommodations laws, RFRA, etc., in recent weeks.
Wednesday, April 2, 2014
Over at dotCommonweal, Grant Gallicho has a post titled "On abortion, Hobby Lobby looking wobbly." Gallicho comments on a Mother Jones report by Molly Redden: "Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers." The source of Hobby Lobby's alleged hypocrisy is its retirement plan's investments in mutual funds whose holdings include Teva Pharmaceuticals, Pfizer, Bayer, AstraZeneca, and Forest Laboratories. According to Redden, these companies manufacture drugs or devices that Hobby Lobby objects to providing coverage of in the insurance offered to its employees.
Suggesting that Hobby Lobby is insincere in its objections to facilitating the use of abortifacient drugs and devices, Gallicho suggests that "the cooperation is more direct" through these mutual fund investments than through no-copay insurance coverage. These mutual-fund investments, Gallicho asserts, "brin[g] Hobby Lobby significantly closer to the evil in question than would any premium payments that could allow employees to use contraceptive services."
I would be surprised if many shared Gallicho's assessment of moral culpability. Is an employer more morally culpable for contributing to cigarette smoking because (a) its retirement plan owns mutual funds that own shares in Altria, or (b) it purchases an employee benefits plan that includes vouchers for Marlboros at no additional cost to its employees?
Gallicho asks: "What might last week's oral arguments [in Hobby Lobby's case] have sounded like had this been reported earlier?" He is unsure. But I think it's safe to say that the arguments would have either proceeded exactly as they did or have gone slightly worse for the government.
Unlike Gallicho, the government has not challenged Hobby Lobby's sincerity. And more to the point of Gallicho's question, it is highly unlikely that the Justices would share Gallicho's assessment of comparative moral culpability. From their financial disclosures, it seems the only Justices who would be free of moral taint for the activities of companies whose shares are owned by mutual funds owned by the Justices would be Justices Kennedy, Thomas, and Sotomayor. (This is based on their 2010 disclosures, which are the most recent available at Oyez.) The other six Justices all own or have recently owned shares of mutual funds. And it is safe to assume that some of those mutual funds, particularly the broadly diversified funds, own shares in the same pharmaceutical companies that the mutual funds offered to Hobby Lobby's employees do Hobby Lobby does. Moral or theological merits of the argument aside, it would be bad lawyering to argue that these Justices bear some moral culpability for the actions of these companies because they "inves[t] annually [in funds that own shares of companies that] directly suppor[t] the production of drugs that always cause abortions."
[Update: Edited for clarity.]
My colleague Mark Movsesian and I discuss some of the background of the case and the oral argument, with a few predictions at the end, in this podcast.
