Category: 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.

Pope Benedict’s Message on Peace, Justice, and Wealth Redistribution

Pope Benedict’s interpretations of Catholic Social Thought have been consistently inspiring. His recent message on the World Day of Justice and Peace focused on the material foundations of a just and well-ordered society.

“Blessed are the peacemakers, for they shall be called sons of God”, as Jesus says in the Sermon on the Mount (Mt 5:9). Peace for all is the fruit of justice for all, and no one can shirk this essential task of promoting justice, according to one’s particular areas of competence and responsibility. . . .

Peace . . . is not merely a gift to be received: it is also a task to be undertaken. In order to be true peacemakers, we must educate ourselves in compassion, solidarity, working together, fraternity, in being active within the community and concerned to raise awareness about national and international issues and the importance of seeking adequate mechanisms for the redistribution of wealth, the promotion of growth, cooperation for development and conflict resolution.

This position confirms a long line of encyclicals urging the fair distribution of global resources. As Pope Benedict earlier stated in Caritas in Veritate, “Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function.”
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Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

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Reviewing the Oral Argument in Hosanna-Tabor (Part One)

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

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