It's available here. It is, of course, not a secret that I believe the current Administration has not done well at protecting, respecting, and really grasping what religous freedom is and why it matters. That said, it can only be a good thing if words like these are coming from our President (any President):
America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.
I am, I admit, nervous about language like this, from last year's Proclamation:
Foremost among the rights Americans hold sacred is the freedom to worship as we choose.
Like Leslie Ford (here), I think it is very important to push back against suggestions that "religious freedom" is merely about the "freedom to worship" -- as Ford put it (in 2013), "[r]eligious freedom is not just for weekends in your home or place or worship. It’s a freedom that allows individuals to live out their beliefs and values every day of the week." But, I think it is worth hoping that the omission of "freedom to worship" language, and the use of "practice" instead, in this year's Proclamation is a good sign.
As my former student, at the Becket Fund, Adele Auxier Kleim, notes:
After a misstep last year, this year President Obama issued a proclamation calling religious freedom a “critical foundation of our Nation’s liberty,” and quoting Thomas Jefferson, who “declared religious liberty a natural right and any attempt to subvert it ‘a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.’”
And, here's more from Eric Treene (DOJ) and Melissa Rogers (White House), focusing on the good and important work done through RLUIPA.
Raise a glass to Religious Freedom Day!
Both the the Washington Post op-ed and HLR student note recently linked here include the assertion that exempting employers from compliance with the contraceptives mandate imposes a burden on employees. This assertion presupposes a baseline entitlement to such coverage. Unless an entitlement to such coverage is built into the baseline, the absence of such coverage is not a burden. But if RFRA requires an exemption to the contraceptives coverage mandate, then the supposed baseline entitlement is illegal. And if the baseline entitlement is illegal, what is the argument for using it as one’s baseline?
The contraceptives coverage mandate is a product of regulations implementing Congress’s statutory commands. Importantly, the ACA does not supply the only statutory requirements that the government entities that drew up the contraceptives coverage mandate and its three-tiered scheme for religious objectors were bound to follow. These government entities were equally obligated to follow RFRA as well. If their regulatory imposition of the coverage mandate on religiously objecting employers violates RFRA, then the regulations that purported to create the entitlement were invalid. And invalid regulations should not be taken to supply the baseline for deciding what counts as a burden in legal analysis.
127 Harvard Law Review 11025 (2014)
FIRST AMENDMENT — FREE EXERCISE OF RELIGION — TENTH CIRCUIT HOLDS FOR-PROFIT CORPORATE PLAINTIFFS LIKELY TO SUCCEED ON THE MERITS OF SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE CLAIM. — Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).
The concluding paragraph:
The Tenth Circuit in Hobby Lobby pierced the veil between the corporate plaintiffs and their shareholders, not to protect third parties, as veil piercing is meant to, but to protect the corporations’ expression of the Greens’ religious beliefs, even while the Greens maintained the benefits of limited liability. If for-profit corporations do merit RFRA protection, such protection should be limited to the corporations’ own religious expressions. In this case, failing to limit the protection imposed the costs of the Greens’ freedom of religious exercise on any of their more than 13,000 full-time employees who choose forms of contraception that violate the Greens’ religious beliefs; those employees must now pay out of pocket, despite having had only a statement of commitment to biblical principles to warn them that they might bear those costs.
That's the title of a new paper--which may interest some MOJ readers--by University of St. Thomas law prof Charles Reid. The paper is available here. The abstract:
This Article has two principal purposes. The first is to examine the logic and limits of a medieval debate over same-sex unions. The medieval lawyers who engaged in this debate were no friends of same-sex unions. The debate, rather, seemed to take the form of an academic exercise by which the lawyers involved defined more rigorously the boundaries of what counted as marriage and also imported into the jurisprudence of marriage a deeply-hostile homophobia. I do not assert that same-sex marriage was an actual social reality in the Middle Ages. The existence of this debate, however, is quite remarkable in its own right. The Article’s second major purpose, then, is to reconsider the origins of homophobia. By connecting the canon law of marriage with homophobic rhetoric, the medieval lawyers reinterpreted marriage as an institution that not only served certain ends in its own right but existed to defeat the perceived threat of same-sex relations. This linkage, first articulated in the thirteenth century, unfortunately remains a feature of the contemporary debate over same-sex unions.
Thursday, January 16, 2014
As Michael Perry notes, Prof. Fred Gedicks -- one of the more prolific and important law-and-religion scholars of his generation -- argues that it would violate the Establishment Clause to exempt Hobby Lobby (et al.) from the contraception-coverage mandate. Other important and accomplished scholars have also made this claim. But, as Marc DeGirolami has explained, in this MOJ post, the argument is not persuasive.
