Wednesday, April 1, 2015
Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter's recent post: "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."
One might have thought, even relatively recently, that religious freedom was a "civil right." But no longer: it is now said to be the enemy of "civil rights." And I suppose that what is "weaponized" will depend on one's perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state's interest in vindicating specific sorts of dignitarian harms, that have been "weaponized." But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.
Here's how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I'll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):
The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.
Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.
Tuesday, March 31, 2015
The American Pharmacists' Association has adopted a policy that discourages its members from participating in executions. Here is the news release:
WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.
The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”
APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.
This new policy statement joins two policies previously adopted by the APhA House of Delegates:
Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)
APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.
This APhA policy aligns with a recently adopted policy of the International Association of Compounding Pharmacies.
On the merits, I agree with these new non-participation policies. In order for them to be fully effective, there may need to be conscience protection for pharmacists should any governments try to force the issue.
Most people should have no trouble recognizing that pharmacists should not be forced to violate their conscience when it comes to execution drugs. Pharmacists should not lack this protection because they are paid for their services and the drugs they sell. Yet we sometimes hear that people operating for-profit businesses should not have conscience protection. I hope that people who see the value of conscience protection when it comes to execution drugs can also see the value of conscience protection when it comes to assisted-suicide drugs and abortifacient drugs.
Monday, March 30, 2015
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.
I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:
How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.
Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.
In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.
Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.
It should come as no surprise to us of the present age that religion plays a key role in political life. Recently the State of Indiana enacted its Religious Freedom Restoration Act that parallels Federal legislation and statutes of many other states of the Union. Unfortunately, some American citizens or interests are keen on exposing the so-called discrimination or potential discrimination that this kind of legislation may perpetrate against fellow citizens who are part of the sexual orientation and gender identity movement.
Powerful influences including elements of the media, the NCAA, and large corporations that publicly support the political, social, and cultural initiatives of this movement have been adding their objections to this new legislation which reflects what has been the law for some time in other jurisdictions. Could it be that there is something in the text of the Indiana law that is different? I do not think that is the real issue. The real issue resides in the text itself and what the text is supposed to protect, which I shall address in a moment.
The opponents of the new Indiana law are now pressuring the legislators and the governor, who supports the legislation, for clarifications. But are clarifications needed? This is where a careful examination and interpretation of the text are in order. After all, words and their meanings are important to the law as are the entire texts. In my discussion today, I am relying on Indiana Senate Bill No. 568 introduced on January 20 of this year and enacted this past week. The text is HERE: Download SB0568.01.INTR.
The substance of the legislation is contained in Section 6 that provides that state action or the action of an individual based on state action cannot “substantially burden a person’s right to the exercise of religion, even if the burden results from a law or policy of general applicability.” The same section further provides that a burden to the right of religious free exercise may be lawful and trump the right of religious freedom if the burden is “essential to further a compelling governmental interest” and is “the least restrictive means of furthering the compelling governmental interest.” This language essentially tracks Supreme Court jurisprudence, albeit at times confusing, on the nature of religious liberty.
The first five sections of the legislation contain the definitions applicable to the intent and purpose of the new law. I find two of the definitions crucial to meeting the general opposition to the state RFRA that opponents of the bill are voicing. Section 3 defines the phrase “the exercise of religion.” The definition can be fairly distilled as the practice or observance of a person’s [defined in Section 4] ability to act or to refuse to act in a manner that is substantially motivated by the person’s sincerely held religious belief. Inherent in this protected right is the defense of the person who is acting or refusing to act on the grounds of that person’s religion. This protected right does not impose on the non-believer or someone who adheres to some other faith. It protects the claimant who is exercising a Constitutional and now an Indiana statutory right. It does not interfere with the legal rights of others who may disagree with the religious tenets in issue.
To understand this point further, it is useful to look at the second important definition to which I alluded a moment ago, and this definition concerns the “compelling governmental interest” that can derogate the protected right of religious freedom under specified circumstances. A “compelling governmental interest” is defined as “a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.” I have emphasized two passages with italics.
While the first italicized phrase might profit from a definition, I do not think that a definition essential to the protection of all legitimate interests at stake. The phrase “the highest magnitude” suggests a crucial legal, perhaps even constitutional, principle that is essential to the integrity and survival of the Republic, the State of Indiana, and the commonweal/common good. Opponents to the legislation appear to ignore this element of the text when they argue that the Indiana law “could make it easier for religious conservatives [the legislation does not use the term “conservative” anywhere] to refuse service to gay couples.” What might these services be? The denial of some services to anyone might actually be a lawful act of discrimination rather than an unlawful act of discrimination.
For example, an innkeeper might discriminate against a would-be customer if the innkeeper refuses to serve alcohol to someone who is already intoxicated or underaged. This refusal could be compelled not only by law but also by a person’s sincerely held religious belief that the intoxicated or underaged person should not be served. Might the proprietor of a bed and breakfast refuse to accommodate a single person? Unless the single person is rowdy, a known fugitive from justice, travelling with an animal, etc., it would be difficult for the proprietor to refuse accommodation on the grounds of religious freedom as the law is designed to protect. But what if it is a couple of persons? Does it matter if they are of the same-sex or opposite-sex? Could the proprietor rely on the provisions of this law to deny accommodation to either couple and not trigger the compelling governmental interest standard of the highest magnitude? It would seem that the right of religious freedom (or conscience which is not directly addressed by the statute’s language) as enshrined by the law would protect the proprietor who knows that the opposite-sex couple is not married. Why should the same-sex couple be treated differently by forcing the proprietor to provide them with a room with a large bed? (Perhaps the circumstances would be different if this couple were Queequeg and Ismael from Melville’s Moby Dick, but I digress.) Is there a compelling governmental interest of the highest magnitude that is at stake? Would it matter if the proprietor of the business relying on the religious liberty protection operates a bakery and objects to an opposite-sex couple who want a cake to celebrate their living together out of wedlock or a same-sex couple who order a cake to celebrate their commitment or union under state law?
The point here is this: must a person seeking the protection of this law conform his, her, or its religious conscience and thereby sacrifice his, her, or its religious faith to the sin of someone who desires to have his, her, or its action declared a compelling governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the religious person’s free exercise? It strikes me that, given the context of those objecting to this law, this is precisely the objective that they are seeking. They are pursuing the goal because they see no sin or sin is inconsequential; it is irrelevant to them that they are asking another person to cooperate and participate in their sin. This circumstance parallels what medical providers are now facing from their licensing authorities when they are forced to refer a patient to a medical provider who will provide the service they cannot provide due to their sincerely held religious belief or conscience.
As I keep going over the text of the new Indiana law and consider the objections raised by its opponents, I see strong parallels to what Henry VIII did in England from 1533-35. Both the king and the opponents of the Indiana law will not tolerate anyone who disagrees with their objective from escaping. All must conform to the goals of the law’s opponents, and sincerely held religious beliefs will be no defense. We know what happened during and after 1535 in England. Is this same thing really required under the rubric of a compelling governmental interest of the highest magnitude today? If so, then sin wins once again and virtue is at forfeit.
In this time of embarrassingly poor reporting at the intersection of law and religion, it can be helpful to recognize that not all law-and-religion matters divide on predictable lines. MOJ readers familiar with the joint editorial of various Catholic publications on the death penalty may therefore find of interest the New York Times Beliefs column from this past weekend: "Catholics on Left and Right Find Common Ground Opposing Death Penalty."
There was once a time in my life when I simultaneously subscribed to both The National Catholic Register and The National Catholic Reporter, and I have also subscribed at various times to First Things, Commonweal, America, and Our Sunday Visitor. (Much of this was before the internet and Catholic blogs were the kinds of sources they are now.) Eventually the cacophony was too much to take (particularly reading "news" stories on the same issues from both the Register and the Reporter in one sitting) and I have weaned off print subscriptions to all of them.
In any event, I'm hopeful for working together with Catholics and others here in Virginia to end the death penalty. Depending on how Glossip v. Gross comes down and on other developments, lethal injection may no longer be practicable. Proposed legislation that switches over to firing squad may be a useful way for both sides of the death penalty debate to put their respective positions before voters and legislators.
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. . . .