Tuesday, February 10, 2015
An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state constitutions on church and state. This article aims to open a field of inquiry by making the church-state provisions of the Founding-era state constitutions more accessible. It begins with a consideration of the distinction between the state declarations of rights and the state constitutions and the interpretive challenge this distinction poses. I then identify, categorize, and interpret the relevant church-state provisions of the Founding-era state declarations of rights and constitutions. The article concludes with a discussion of how a deeper knowledge of the Founding-era state church-state provisions might shed light on the original meaning of the First Amendment’s religion clauses, and it reveals the probable errors of particular originalist arguments made by leading scholars and Supreme Court justices.
Monday, December 22, 2014
Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.
This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities enjoy a distinctive set of rights. Instead, the relevant limitation on government arises from the Constitution’s Establishment Clause. The governing principle, deeply grounded in history, can best be understood as a prohibition on government involvement – through regulation or financial support – in “purely and strictly ecclesiastical matters.” That principle (developed at greater length in our book, Secular Government, Religious People) explains why the government may not decide, for example, who is fit for ministry or which faction within a church is acting in fidelity to its original teachings. The principle applies with equal force to the state’s relationship with houses of worship, religious non-profit institutions such as schools or charities, and for-profit businesses whose owners assert a corporate religious character. The only legally relevant differences among these types of organizations should be derived from the likelihood that the principle will be implicated in any particular case.
After reviewing the 19th century underpinnings of this singular approach, and offering pertinent reminders of limits on state financial support for religious teaching, the chapter focuses primarily on the context of employment regulation. Along the way, the chapter addresses concrete questions, such as whether a for-profit business can ever successfully assert a ministerial exception with respect to any of its employees. The answer may surprise you.
Wednesday, November 19, 2014
This publication examines the broad implications the United States Supreme Court's holding in Burwell vs. Hobby Lobby et al. could have on medical care. The Court in Hobby Lobby held the company could sue for an exemption from the contraceptive mandate of the Affordable Care Act on grounds that it was a substantial burden on the company's exercise of religious freedom. The reasoning in Hobby Lobby could extend beyond insurance and parallels to debates over "conscience-based" refusals to prescribe or dispense contraceptives. There is concern that companies may use this same logic to discriminate in the name of religion against same-sex spouses with regard to benefit packages; employers may object to state-mandated coverage of in vitro fertilization; and physicians may be able to withhold information from a patient under a religion based moral objection. Evidence shows the most effective methods of contraception that will lead to fewer unintended pregnancies, and thus, fewer abortions is access to the most effective methods of contraception. Hobby Lobby may well be driving its female employees to less effective methods of contraception, leading to more unintended pregnancies and pregnancy terminations. By its own logic, Hobby Lobby may now become complicit in those additional abortions.
Friday, November 14, 2014
The Obama Administration's contraceptive mandate implicates issues of complicity that run through many aspects of civil society, whether it is the police officer told to protect an abortion clinic or the tax exemption granted even to misogynist, homophobic, anti-semitic and racist religious groups such as the Westboro Baptist Church. How should the contraceptive mandate be framed, as a public health measure or as a turf dispute over the public space?
Friday, October 24, 2014
The Washington Times reports on the outcry from conservative religious leaders over Houston mayor Annise Parker's issuance of subpoenas for the communications of five Houston pastors. The subpoenas come as part of litigation stemming from the disqualification of roughly 70 percent of the signatures on petitions to repeal the city ordinance requiring local businesses to permit transgender persons to use the bathrooms of the gender with which they identify. Mayor Parker claims that the subpoenas are necessary for the discovery of documents pertinent to the controversy, while opponents argue that the subpoenas themselves violate the pastors' First Amendment rights.
Parker already has amended the subpoenas so that the pastors will not be required to turn over copies of their sermons.
Wednesday, October 1, 2014
Yesterday in The Atlantic Professor Dawinder Sidhu examined Holt v. Hobbs, a First Amendment religious freedom case scheduled for oral argument before SCOTUS early next week. Principally, Sidhu questions whether SCOTUS will extend the same broad protection for religious belief it employed earlier this year in Burwell v. Hobby Lobby to the claims of a less sympathetic group – federal prisoners. He sets it up this way:
Religious freedom in the United States has ebbed and flowed between two competing concepts: the principled view that religion is a matter of individual conscience that cannot be invaded by the government, and the practical concern once expressed by Justice Antonin Scalia that accommodating all religious practices in our diverse society would be “courting anarchy.” In June, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations, whose owners objected to contraception on account of sincere Christian beliefs, could not be forced by the Affordable Care Act to include certain contraceptives in their employee insurance plans. In supporting the religious rights of business owners over a national health-care policy predicated on broad participation, the Roberts Court seemed to stake its place on the more protective end of the religious-freedom spectrum.
But the idea that Hobby Lobby creates robust protections will be credible only if the justices are willing to recognize the religious freedom of marginalized religious minorities—not just the Judeo-Christian tradition. The next religious-freedom case to come before the Court, Holt v. Hobbs, will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Court’s reputation.
Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” In 2011, Holt filed a lawsuit against the director of the department, Ray Hobbs, and other state employees, saying that the prison had violated his religious rights. After decisions by federal trial and appeals courts in favor of the department, Holt filed a hand-written petition to the Supreme Court, which agreed to review the case. The justices are scheduled to hear arguments in Holt on October 7.
Tuesday, August 5, 2014
The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption -- federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend to be rhetorically strong and experientially weak, with an occasional outburst of religion-protecting vigor. Burwell v. Hobby Lobby, analyzed in Part III, demonstrates yet again that application of vague, general standards for adjudicating religious exemption claims cannot satisfy values associated with the rule of law. The key terms in the Religious Freedom Restoration Act are perpetually contested and subject to infinite, result-oriented manipulability. Part IV concludes with a prediction that Burwell v. Hobby Lobby will suffer the same fate as earlier, apparently strenuous embraces of religious exemptions. Ultimately, it will wither on a malnourished vine.
Tuesday, April 1, 2014
The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.
Similarly, in the abstratct of Religion, Equality and Public Reason, he writes:
A growing number of critics have asked whether singling out religion for special treatment is morally justifiable. In Religion Without God, Ronald Dworkin sides with those who reject the distinctiveness of religion. In this essay, I situate Dworkin’s argument within the larger debate. I then argue that his view is driven toward replacing a distinction between religious and secular commitments with one that turns on the difference between public and nonpublic values. The latter distinction is central to the idea of public reason. Although Dworkin resisted this idea, his arguments against the distinctiveness of religion lead him inexorably to some conception of it, suggesting the inevitability of a commitment to public reason for those who occupy a certain place in the debate about whether religion is special.
Saturday, December 7, 2013
Federal court hears case alleging the heat on death row in a Louisiana prison is unsafe; civil rights lawsuit filed alleging that a diabetic inmate died because the prison failed to provide adequate medical care; and, civil rights lawsuit alleges the police in a Miami suburb targeted African-Americans.
Fourth Circuit orders gun found on a convicted felon suppressed because it was obtained during an illegal search.
Americans are more deeply divided on gun policy than before Newtown; Plain Dealer columnist contrasts Newtown parents efforts to keep children safe from guns with those of gun-rights activists; and, Georgia man mistakingly kills a man suffering from Alzheimer's.
Iowa Supreme Court upholds law banning non-residents from hunting on property that they own.
December 7, 2013 in Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Religion, Freedom of Speech, Gun Policy, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)
Wednesday, November 20, 2013
NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.
Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.
Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.
Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.
Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.
Governor expected to sign Illinois's law legalizing same-sex marriage later today.
Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.
Sunday, November 17, 2013
Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.
United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.
NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.
In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'
November 17, 2013 in Abortion, Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Religion, Freedom of Speech, Religion, Right to Vote, Same-sex marriage, Stop-and-frisk, Theories of Punishment, Voter ID | Permalink | Comments (0)
Thursday, November 7, 2013
WaPo breaks down Senate votes for and against Employment Non-Discrimination Act.
Florida Supreme Court rules that the woman who donated her egg to her partner has equal rights to the child after the relationship later dissolved.
Supreme Court hears "unusually testy oral-argument session" over right of a town council to pray before meetings.
Iowa State Bar Assocation president defends judge currently under fire for a recent ruling blocking ban on Planned Parenthood's use of teleconferences to administer abortion pills.
Brown University may punish students who booed NYPD commissioner.
Case Western Law School dean embroiled in scandal over allegations that he sexually harrassed faculty has taken a leave of absence.
Wednesday, November 6, 2013
Supreme Court scheduled to hear arguments over the constitutionality of prayer at public meetings.
Federal judge rules that protesters may occupy state property indefinitely.
Advocates likely to start pushing for adoption rights for LGBT couples.
Does ENDA support demonstrates the evolution of the GOP on LGBT issues?
AG Holder continues advocacy for criminal justice reform at prisoner reentry group's event.
Friday, November 1, 2013
A federal appeals court in Washington joined other courts on Friday by ruling for an employer who raised religious objections to a provision of the 2010 U.S. healthcare law requiring companies to provide insurance that covers birth control.
The U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled in favor of Catholic brothers Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics, who do not want to provide insurance coverage for contraception, sterilization and abortion.
The legal question of whether employers can exercise their religious rights under the First Amendment of the U.S. Constitution to avoid complying with the so-called "contraception mandate" is almost certain to eventually be decided by the U.S. Supreme Court.
In Friday's ruling, the court said the corporations did not have First Amendment rights to press a claim but that the two brothers, as shareholders, did.
Monday, October 28, 2013
High school student who dressed as a homeless man pursuant to an assignment gets suspended for failing to identify himself to school officials quickly enough.
Christian school allegedly required black student to attend spiritual retreat glorifying Confederate history and Confederate flag.
ACLU requests that ICE immediately desist arresting people arriving at the courthouse to pay traffic tickets.
New GPS tracking projectile allows police to attach GPS to vehicles reducing the risk of chases.
New report says President Obama did not know about NSA's surveillance of foreign leaders.
Saturday, October 26, 2013
The Tennessee judge who independently changed a baby’s name from Messiah to Martin has been found to have violated Tennessee’s Judicial Code of Conduct. The judge ordered the name changed despite protests from both parents. According to the judge, “Messiah” can only be applied to the one who “earned” it, “and that one person is Jesus Christ.”
Rule 2.3(B) of the Judicial Code of Conduct states:
A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon…religion[.]
The judge’s action clearly violates the requirement of Rule 2.3. By requiring the name-change, the judge’s judicial opinion reflected her religious convictions, and her ordered required the parents’ compliance at the expense of their own beliefs.
Tthe Tennessee Constitution states "that no human authority, in any case whatever, control or interfere with the rights of conscience[.]" Art. 1, Sec. 3. Also, at a minimum, the Establishment Clause of First Amendment prevents coercive state action that compels adherence to a particular religious doctrine. The state has no authority to require religious observance, and requiring the baby’s parents to change their child’s name to meet the judge’s personal religious beliefs clearly does just that.
I’m not particularly familiar with available punishments for judicial misconduct, but this seems like a particularly egregious example that requires more than a meager scolding. To me, the judge's order calls her judgment into question. How can society expect fair and impartial rulings after such an obvious example of judicial disregard for the Tennessee Code of Conduct, the Tennessee Constitution, and the U.S. Constitution?
Sanctions against the judge are pending.
Notably, according to Reuters:
Messiah was the 387th most popular name for boys born in the United States in 2012, based on applications for Social Security cards filed with the U.S. Social Security Administration.
In all, there were 762 applications for boys named Messiah in 2012, more than double the 368 applications made in 2011, the Social Security Administration said.
Air Force Academy cadets no longer are required to recite "so help me God" in Honor Oath.
Illinois bill to impose mandatory minimums for illegal gun possession could be a win-win for Chicago mayor.
University of Pittsburgh Medical Center must wait to pursue civil rights lawsuit against the city and mayor for violation of due process in tax collection efforts.