GETTING TO PURPLE: RELIGIOUS FREEDOM ARGUMENTS TO REACH THE - PowerPoint Presentation

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GETTING TO PURPLE: RELIGIOUS FREEDOM ARGUMENTS TO REACH THE PERSUADABLE MIDDLE

Thomas

c.

Berg, university of

st.

Thomas school of law,

minnesota

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Background: issues & the legal framework

Issues: objections to facilitating abortion; maintaining standards re marriage/sexuality etc.

Religious organizations (churches, adoption agencies, schools); for-profit businesses

The arguments for the former are stronger,

more expansive

, more central

Preserving religious freedom in the face of generally applicable laws and regulations: exemptions/ accommodations, through either:

Litigation—under general standard requiring that if the government “substantially burdens” religious freedom, it must serve a “compelling interest,” by the “least restrictive means”: religious freedom laws (federal and state RFRAs), state constitutional provisions

Lobbying for specific legislation—sometimes along with passage of the underlying law, sometimes later

Questions re the scope of protections:

Scope of specific legislative exemption: who (beyond churches) can claim it? How far does it extend?

What is a compelling interest? What constitutes a “less restrictive means”?

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3 kinds of arguments

Answers

that society gives to the above questions

will be affected by degree of sympathy for the religious

dissenter’s predicament/situation

In an atmosphere of skepticism/hostility to many religious freedom claims—especially claims by traditionalist believers—we need arguments to reach the persuadable middle

Some arguments—tradition, original intent, America’s “religious nature”—are losing force

Civil liberty arguments

Civic republican arguments (religious organizations’ contributions to society)

Pragmatic arguments Slide4

1. civil-liberty arguments

Religious

identity is

a

crucial/pervasive

part

of personal

identity

Law professor Alan Brownstein: “For

serious believers, religion is one of the most self-defining and

transformative decisions

of human existence. Religious beliefs affect virtually all of the

defining decisions

of

personhood—whom we

will marry and what

that union

represents, the birth of our children, our interactions with family members,

the way

we deal with death, the ethics of our professional conduct, and many

other aspects

of our lives. Almost any other individual decision pales in

comparison to

the serious commitment to religious faith

.”

It’s

also

interconnected

—therefore, departing from God’s will in one respect is not just an isolated matter for the believer

Christopher

Eisgruber

and Lawrence Sager: “[R]

eligious

affiliation typically implicates an expansive web of belief and conduct”—a “comprehensive” web rather than a set of “discrete propositions or theories”—and “the stakes of being within or without these webs of belief and membership can be very high,” such as “leading a life of virtue or a life of sin,” or “fulfilling or squandering one’s highest destiny

.”Slide5

Civil liberty arguments (cont’d)

Draw parallels to secular claims: e.g. in contraception dispute, note that progressives support(

ed

) corporate social responsibility (re. sweatshops or South Africa)

Also e.g., parallels to same-sex marriage claims: If one supports same-sex marriage, one should also support strong protection for religious freedom (

Laycock

/Berg

brief

in

Obergefell v. Hodges

; also here)

“You can believe, but don’t discriminate (don’t act)”? BUT “believers

cannot fail to act on God’s will, and it is no more reasonable for the state to demand that they do so than for the state to demand celibacy of all gays and

lesbians.”

“You can follow it in church, but keep it there”? BUT “same-sex

couples claim a right beyond

the

bedroom:

the

right to participate in the social institution of civil marriage. Religious believers likewise claim a right to follow their faith not just in worship services, but in the charitable activities of their religious organizations and in their daily lives

.”

“[B]

oth

same-sex couples and religious dissenters face the problem that what they experience as among the highest virtues

[and involves giving to others] is

condemned by others as a grave

evil.”Slide6

2. Civic republican arguments: beginning with evidence

Religious

groups (even dissenters) contribute indispensably to the common

good, especially

service to the needy), which progressives

(should) particularly

value

Magnitude of services: “If

[faith-based service organizations] would disappear overnight, a crisis

of the

first magnitude would exist in the nation’s social safety net

.” Stephen

Monsma

,

Pluralism and Freedom: Faith-Based Organizations in a Democratic Society

(and other sources). Just a few examples:

Catholic

Charities USA provides more

persons in

the U.S. with social services than any entity except the

federal government (more

than 10.2 million persons in

2010)

“

A survey of nonprofit relief efforts following

the 2005

hurricanes Katrina and Rita in the New Orleans and Gulf

Coast areas

found that

59 percent

of the

organizations providing

relief were congregations or other faith-based agencies”;

religious

agencies also tend to serve more persons than secular

agencies

Faith-based

foster-care and

adoption agencies

place thousands of children a year;

“[

i

]f [faith-based agencies]

would disappear overnight,

the

whole structure would

collapse”

(CEO, National

Council for

Adoption)Slide7

Civic contributions: distinctive religious contributions

Stephen

Monsma

: “Faith-based

organizations often fill a niche that either

government or

large, secular social service agencies would have a hard time

filling”

E.g. report on successful prisoner

reentry

programs: “Faith-based

institutions may be able to

affect returning

prisoners in ways that other programs do not

,”

because they

“can help

create the conditions for personal transformation, provide inspiration

, and

motivate individuals to achieve individual

goals”

Religious institutions mobilize social capital—volunteers, donations—for service to nonmembers, at higher levels than nonreligious organizations (John

DiIulio

)

Robert Putnam and David

Campbell: “regular

churchgoers are

more than

twice as likely to volunteer to help the needy, compared

to demographically

matched Americans who rarely, if ever, attend

church”

Steve McFarland, World Vision: “‘We are not just another humanitarian organization, but a branch of the body of Christ. . . . The key to our effectiveness is our faith, not our size. If we would lose our birthright, if we ever would not be able to determine our team, we’d lose our vision

.’”Slide8

THE CIVIC CONTRIBUTIONS OF DISSENTers

Protecting the dissenter, even though he departs from social morality on

this

particular law, serves society by leaving the dissenter free to continue to serve others, in distinctive ways reflecting its identity—and motivated by its identity

George Washington, Letter to Newport (RI) Quakers, 1789: “[I]it

is doing the

people called

Quakers no more than justice to say, that (except their declining

to share

with others the burden of the common defense) there is no

denomination among

us, who are more exemplary and useful

citizens…. [I]n

my opinion the conscientious scruples

of all

men should be treated with great delicacy and tenderness; and it is my

wish and

desire, that the laws may always be as extensively accommodated to them

, as

a due regard to the protection and essential interests of the nation may

justify and permit.”

“[Organizations’] best contribution

to the common good may be an uncommon

contribution” (Stanley Carlson-

Thies

)Slide9

CIVIC contributions: Some quotes from liberals

Democratic Party Platform 2012: “We

know that our nation, our communities, and our lives are made vastly stronger and richer by faith and the countless acts of justice and mercy it

inspires…. People

of faith and religious organizations do amazing work in communities across this country and the world, and we believe in lifting up and valuing that good work, and finding ways to support it where possible

.”

Among respondents reporting no religious

affiliation (2

to 1

liberal/Democratic),

77 percent said that religious organizations “play an important role in helping the poor and

needy” (

Pew

Research

Center

)

President Obama

, welcoming Pope Francis, Sept 22: “[Your visit] reveals

how much all Americans, from every background and of every faith, value the role that the Catholic Church plays in strengthening America. From my time working in impoverished neighborhoods with the Catholic Church in Chicago, to my travels as President, I’ve seen firsthand how, every day, Catholic communities, priests, nuns, and laity feed the hungry, heal the sick, shelter the homeless, educate our children, and fortify the faith that sustains so many

.”Slide10

3. Pragmatic arguments

Religious freedom accommodations can remove/mitigate objections to the underlying legislation, make it possible to protect both interests—and reduce conflict and resentment

Same-sex marriage (example of enactment in NY state the second time around)

Possibilities for Utah-type compromise (employment discrimination laws, with meaningful religious exemptions)—although it seems doubtful right now

Making this argument depends on: (a) the underlying legislation is reasonably likely to pass eventually, (b) the underlying legislation is not so odious that we can’t help it in any waySlide11

The nature of these 3 arguments

No one of these arguments is likely to be sufficient in itself

They aren’t the only arguments

They are the ones most likely to appeal to those who reasonably disagree with the underlying belief

Arguing for religious freedom now is often a kind of

apologetics

: arguing to others based on those standards that are sharedSlide12

In application: acknowledging competing interests

Protect other legitimate interests (if religious freedom is protected too)

Sexual-orientation civil-rights laws with meaningful religious-freedom protections (the “Utah compromise”)?

Limits on scope of RF protections (under “compelling interest” test or specific legislation)

Limits on accommodation of for-profits (a problem with versions of First Amendment Defense Act that protect all closely-held corporations no matter the size)

Limits on accommodation of those holding monopoly positions (“chokepoints”)

E.g. human-trafficking grants and abortion: USCCB as holding the prime contract, vs. simply one of the contractors

Limits on accommodation of government employees in their duties, esp. directly affecting the public

Start by pushing for broadest protection as bargaining leverage?—Perhaps; but overly broad proposal can easily become so unpopular it kills the initiative

It depends on the issue (politically and in principle): e.g. take a more expansive position against abortion, than against same-sex relationships in all contextsSlide13

Conclusion: pope francis

“Freedom to serve,” especially those in greatest need:

“[R]

eligious

liberty, by its nature, transcends places of worship and the private sphere of individuals and families. Our rich religious traditions [also] serve society…. They call to conversion, reconciliation, concern for the future of society, self-sacrifice in the service of the common good, and compassion for those in need. At the heart of their spiritual mission is the proclamation of the truth and dignity of the human person and human rights.”

John Allen

: “Francis’ line about giving the Church freedom and space to bring the Gospel to the ‘existential peripheries of society’ is potentially a game-changer”: it “could help the push for religious liberty transcend the divisions often associated with the wars of culture.”

Respecting/acknowledging

other interests

Joy in serving

and

in meeting the challenges:

“The

life of the Church should always reveal clearly that God takes the initiative, that

‘he

has loved us

first’

(

1

Jn

4:19) and that he alone

‘gives

the

growth’

(

1

Cor

3:7). This conviction enables us to maintain a spirit of joy in the midst of a task so demanding and challenging that it engages our entire

life…. Instead

of seeming to impose new obligations,

[Christians] should

appear as people who wish to share their joy, who point to a horizon of beauty and who invite others to a delicious banquet

.” (

Evangelii

Gaudium

, paras. 12, 15)Slide14

Questions?

tcberg@stthomas.edu

(651) 962-4918

Resources:

Laycock

/Berg

brief

on protecting same-sex marriage and religious freedom

Berg,

Progressive Arguments for Religious Organizational Freedom

, 21 J. Contemp. Leg.

Iss

. 279 (2013)

Berg,

Religious Accommodation in the Welfare State

,

Harv

. J.L. & Gender 104 (2015)

Brownstein,

Gays, Jews, and Other Strangers in a Strange Land,

45 U. San. Fran. L.J. 389 (2010)

Stephen

Monsma

& Stanley Carlson-

Thies

,

Free to Serve: Protecting the Religious Freedom of Faith-Based Organizations

(Baker 2015)