Category: Religion


Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy

Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)

Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.

But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.

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The Contraception Mandate Part II

In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.

The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA  as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.

Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.

Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.

Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.


The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.


An Accommodation Too Far

The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.

Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”


Expanding Bob Jones University v. United States

In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.

Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?

Cultural Dissent

I’m often reminded of Madhavi Sunder’s brilliant article Cultural Dissent. Sunder argues that recognition of dissent within doctrine “would prevent law from becoming complicit in . . . project[s] of suppressing internal cultural reform.” Consider the Russian feminist band which could be imprisoned for staging a minute-long rock video in a church. The band sang and performed an intercessory prayer for the removal of President Putin from power. Here is one member’s closing statement:

That Christ the Savior Cathedral had become a significant symbol in the political strategy of the authorities was clear to many thinking people when Vladimir Putin’s former [KGB] colleague Kirill Gundyayev took over as leader of the Russian Orthodox Church. After this happened, Christ the Savior Cathedral began to be openly used as a flashy backdrop for the politics of the security forces, which are the main source of political power in Russia.

Why did Putin feel the need to exploit the Orthodox religion and its aesthetic? Read More


Bingham and the Catholic Church

Like most Protestants during the nineteenth century, Bingham wasn’t crazy about the Pope.  In 1870, he denied the charge that he wanted to “persecute Rome on account of the peculiar religious notions” of the Vatican, which was an odd way of defending yourself against religious bias.  He said in the same speech that, in contrast to his belief in “free governments, free churches, free schools, free Bibles, and free men,” Catholic doctrine was “an attempt to fetter the freedom of conscience; it is an attempt to fetter the freedom of speech; it is an attempt to fetter the freedom of the press.” Despite his distaste for the Holy See, Bingham held that “religious belief, of whatever character, ought to be tolerated, that error itself ‘may be tolerated’ in the words of [Jefferson] ‘where reason is left free to combat it.’”

I guess this is my Easter message, though that wasn’t my intent when I started writing this post.


Surveillance, Apologize (Sometimes), and Repeat

On February 19, 2009, the North Central Texas Fusion Center issued a bulletin to over a hundred law enforcement agencies that urged officers to report activities of pro-Islam groups.  As the bulletin explained, “Middle Eastern Terrorist groups and their supporting organizations have been successful in gaining support for Islamic goals in the United States and providing an environment for terrorist organizations to flourish.”  Groups warranting surveillance and reporting included the Council on American Islamic Relations (CAIR), which “presents itself as a Muslim Civil liberties group yet it was named an unindicted co-conspirator in the Justice Department’s case in Dallas against the Holy Land Foundation, a Hamas-linked Islamic charity.”  So, too, “pushing an aggressive, pro-Islam agenda that’s been increasingly successful in recent years takes on a new light.”  According to the bulletin, while certain activities in isolation may seem innocuous, they may in fact promote Islamic radicalization.”  The bulletin provided the following examples: “Muslim cab drivers in Minneapolis refuse to carry passengers who have alcohol in their possession; The Indianapolis airport in 2007 installed foot baths to accommodate Muslim prayer; Public schools schedule prayer breaks to accommodate Muslim students; Pork is banned in the workplace ; etc..”  Islamic radicalization “marketing schemes have included hip hop fashion boutiques, hip hop bands, use of online social networks, use of video sharing networks, chat forums and blogs.”  (See here for links to the bulletin).

The bulletin was leaked online, and apologies ensued.  At a sub-committee hearing of the House of Representatives Homeland Security Committee entitled “The Future of Fusion Centers: Potential Promise and Dangers,” John Bateman of the Texas Department of Public Safety and Robert Riegle from the US Department of Homeland Security denounced the bulletin.  David Gersten of the U.S. Department of Homeland Security described it as a “demonstration of what not to do.”  Mr. Riegle testified:

We took immediate and aggressive response to the bulletin… we immediately sent a team of civil liberties and civil rights experts down to the state of Texas to work directly with the center.  This included advocates from the Muslim-American community in the United States of America. We also then immediately altered the directors’ meeting at the national conference to emphasize the importance of this and went over this particular oversight error as aggressively as we possibly could.”

Apologies for surveillance of First Amendment activities are so yesterday–at least in New York.  The New York Times recently covered the New York Police Department’s monitoring of websites of Muslim student groups at more than a dozen universities.  Mayor Michael R. Bloomberg defended the efforts as part of the department’s effort to guard against the threat of terrorism.  As the mayor said in an appearance at the Brooklyn Public Library, “The Police Department goes where there are allegations, and they look to see whether those allegations are true.  That’s what you would expect them to do. That’s what you would want them to do.”  Yale University’s president, Richard C. Levin, has this to say in an e-mail to students, faculty, and staff: “I am writing to state, in the strongest possible terms, that police surveillance based on religion, nationality, or peacefully expressed political opinion is antithetical to the values of Yale, the academic community, and the United States.”  These activities resemble the monitoring of protected groups during the COINTELPRO era, which the Church Committee denounced and which Congress sought to prevent in 28 C.F.R. part 23.  If the monitoring spearheaded by the NYPD isn’t included in records that make their way into federal databases, fair information practices required by federal law would not apply.  And New York’s laws may not preclude records of expressive activities, hence the lack of apology.


Cyberbullying and the Cheese-Eating Surrender Monkeys

(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)


New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read More


Employment Division v. Smith is Wrong

I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion.  There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment.  When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith.  When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom.  And those howls are right.  Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim.  But they don’t.