A very interesting read from The Washington Post about the "Justins," the two Tennessee Democratic legislators who have been expelled, returned to office, etc., based on their vocal protests in the legislative chamber. They've been compared to the vocal religious leaders of the civil rights movement.
Since their GOP colleagues voted them out of office this spring, state Reps. Justin J. Pearson (D-Memphis) and Justin Jones (D-Nashville) have quickly become 20-something icons whose style, faith and values ring some very familiar bells. They wear crisp suits, intone Jesus, see public protests as essential and define “biblical justice” as care for the poor and oppressed. ...
But 2023 isn’t 1968, including when it comes to the relationship between religion and politics. The Justins are facing a much less religious country, including segments that are cynical and even repelled by candidates who thunder from pulpits about God being on their side. Experts say the Justins’ unusual campaigns, and the strong reaction to them, could both benefit and threaten the progressive movement of which the men are a part.
In our polarized circumstances, the sharp percentage decline in Americans' active religious identification is seen by many as a boon to movements for progressive understandings of social justice. (Religion, that conservative thing, is losing ground.) But that remains a very uncertain matter, as this article indicates, among other things because the decline of active religion has been accompanied by an intensification of the position that religion should be a private pursuit.
Tuesday, July 4, 2023
My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher, at Amazon, and elsewhere It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:
Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]
Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.
From a blog summary I did on the book:
[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....
A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.
Get your copy for vacation reading!
Wednesday, April 26, 2023
Doug Laycock, Carl Esbeck, Robin Wilson, and I have posted "The Respect for Marriage Act: Living Together Despite Our Deepest Differences," on SSRN (forthcoming in the University of Illinois Law Review). First paragraph of the abstract:
The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.
During the RMA's consideration, the four of us provided an analysis to senators arguing that the religious-liberty protections in the Act were substantial and that the Act offered a chance, even a model, for a pluralistic approach that, by protecting both sides, can help put at least some limit on fear and the attendant political-cultural polarization. This Article expands greatly on that analysis.
Monday, April 3, 2023
(I'm returning to post on the blog after a significant hiatus caused by a bunch of other commitments!)
The U.S. Department of Education has proposed to rescind a provision it adopted in the Trump Administration protecting student religious groups at public universities from being denied access to facilities and other benefits available to other student groups. For the notice-and-comment process, I took the lead in drafting a comment letter from a blue-ribbon group of scholars*/ opposing the rescission. The rescission would leave student religious groups protected under another (but more uncertain) regulation that applies to nonreligious groups as well. But we argue that the distinctive protection for religious groups is fully justified by the First Amendment. Summary quote:
The religious-group protection categorically prohibits a public IHE [institution of higher education] from denying a group access because of its sincerely held beliefs or practices, including leadership and membership criteria. But that categorical protection has strong support in First Amendment principles and current Supreme Court case law, for two major reasons. First, unconstitutional discrimination against religion comes in many different forms, and litigation has shown that almost any public IHE policy that denies a student religious group access discriminates in one of these ways. Second, the First Amendment also categorically guarantees religious organizations autonomy to set criteria for leadership and membership, and public IHE policies denying religious groups access regularly violate that guarantee.
*/ Doug Laycock, Michael McConnell, Rick Garnett, John Inazu, Michael Paulsen, Asma Uddin, and yours truly.
Tuesday, July 27, 2021
Doug Laycock and I have posted this draft law review article on SSRN (link here), with the title and journal information above. We discuss the specific implications of Fulton v. Philadelphia for current Free Exercise Clause standards under Employment Division v. Smith. But, as the abstract states,
we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised [in her Fulton concurrence]. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.
Comments welcome.
Tuesday, June 22, 2021
In Maxon v. Fuller Theological Seminary (9th Circuit), two plaintiffs who had been studying for the ministry at Fuller have sued the Seminary under Title IX for dismissing them for entering into same-sex marriages in violation of the institution's student covenant. Fuller has multiple defenses, including the ministerial exception, but one is the Title IX exemption for schools "controlled by a religious organization." The plaintiffs claim that phrase means the school must be controlled by a separate organization in order to qualify for the exemption. The district court said no, holding that the controlling religious organization can be the school's own governing board. That statutory interpretation can stand on its own. But it's also supported by the doctrine of constitutional avoidance, because reading the exception to exclude a seminary or other deeply religious institution merely because it's organizationally independent or nondenominational would create an impermissible denominational preference under decisions like Larson v. Valente--and at the very least would raise "serious, grave" constitutional questions.
That's the argument of the amicus brief that the St. Thomas religious liberty appellate clinic filed on behalf of a host of colleges, K-12 schools, associations of such institutions, and the Christian Legal Society. Becket's pages on the case are here.
Sunday, June 20, 2021
Doug Laycock and I have commentary up about Fulton. The lion's share is some initial thoughts on some of the questions raised in Justice Barrett's concurrence, which obviously lots of people will be aiming to answer.
(FWIW, I've been inactive on the blog because I've been preoccupied with finishing my manuscript, Religious Liberty in a Polarized Age, forthcoming from Eerdmans.)
