Welcome to Freedom’s Edge

Welcome to my blog! This blog is a place for dialogue about the relationship between Religious Freedom, LGBT Rights, and Reproductive Freedom. Unlike many people, I do not think religious freedom and sexual freedom must conflict with each other. In many situations both can be protected. In other situations one will prevail, but my hope is that through dialogue and bridge building we can work to foster greater understanding and empathy on both sides of the debate.

Lawsuit Challenging “RFRA Fix” in Indiana is an Epic Mistake that Will Harm Religious Freedom

On November 16th Hamilton County, IN Superior Court judge Steven R. Nation rejected a motion to dismiss a lawsuit filed by the Indiana Family Institute, Indiana Family Action, and the Indiana American Family Association challenging the “fix” to the Indiana RFRA. The fix, in part, prevents the Indiana RFRA from overriding state and local civil rights laws. It helped Indiana recover from the intense battle over it’s RFRA which led to boycotts against the state. The boycotts began because prior to the “fix” the Indiana RFRA may have allowed discrimination by for-profit entities against members of the LGBT community. The “fix” helps ensure that for-profit entities can not use RFRA to defend against discrimination claims filed under local antidiscrimination ordinances that protect against discrimination based on sexual orientation (state civil rights laws do not include such protection).

The motion to dismiss was filed by several municipalities whose antidiscrimination ordinances protect members of the LGBT community from discrimination by for-profit entities. Judge Nation’s order included a provision requiring the plaintiffs to add the state as a defendant so the state will now join the municipalities as a defendant.

The groups that filed the suit claim that the RFRA “fix” is unconstitutional because it allows religious exemptions from laws in some situations but does not allow exemptions for conservative Christian for-profit employers who discriminate based on sexual orientation and marriage in violation of local civil rights ordinances. This argument is legally flawed and should fail when addressed on the merits. The most obvious reason for this is that no one, conservative Christian or otherwise, can receive a religious exemption to antidiscrimination laws under the “fix,” and every religious person or entity, including conservative Christians, can receive exemptions to other laws that substantially burden their religion.

Perhaps more importantly this lawsuit threatens to undermine religious freedom and RFRAs nationally. As I have argued regularly, one of the great benefits to RFRA is that it protects religious people and entities from having their religion substantially burdened by laws that may not have considered them. Significantly, these accommodations usually have little or no impact on others. The very nature of antidiscrimination laws, however, demonstrates why any religious exemption will have an obvious impact on third parties, namely, the applicants and employees who are discriminated against. Even so, most state and local laws that protect based on LGBT status, including those in Indiana, have exceptions for religious organizations such as houses of worship and religious non-profits. There are good reasons for these exceptions and good reasons not to include for-profit entities in these exceptions. This lawsuit seeks to protect for-profit entities that claim a religious exemption when they discriminate in violation of local antidiscrimination ordinances.

Simply put, this will backfire! It lends credence to all of those who argue RFRAs are an excuse to discriminate, and further casts a shadow over the important role RFRAs play in helping religious individuals and entities practice religion without unnecessary government interference. This lawsuit hurts religion and hurts RFRAs. The media attention the lawsuit has garnered will harm RFRAs and proposed RFRAs in other states, and in the long run it will hurt the religious entities already exempted under local ordinances. Many partisans and advocates on the other side of the debate have argued that even traditional religious entities should not be exempted under antidiscrimination laws. If this lawsuit is successful they will have stronger arguments on their side because any exemption for religious entities might necessitate exemptions for for-profit entities. I hope that the municipalities, and now the state, are able to successfully defeat this ill conceived lawsuit before it wreaks havoc on protections for traditional religious entities and allows harm to members of the LGBT community. Moreover, religious organizations and members of the LGBT community should join together in public opposition to this lawsuit.

How to Protect Both Religious Freedom and Sexual Freedom After the 2016 Presidential Election

Now that the 2016 Presidential Election is over, what can be done to protect both religious freedom and sexual freedom? I have spent the last few days thinking about this and trying to wrap my brain around the issues that may arise. I am not sure I am up to the task, but here are a few thoughts and suggestions.

First, the tides in the culture wars ebb and flow and it seems that now we may have yet another shift. It is a huge mistake for either side to view these political shifts as proof it need not compromise. A few weeks ago some cultural warriors on the sexual freedom side were casting religious freedom as the enemy and it seemed that this position was gaining in power as advocates for religious freedom hunkered down. This week some culture warriors on the religious freedom side are casting sexual freedom as the enemy and feel empowered to act on their instincts as advocates for sexual freedom are hunkering down.

Yet, the tides are likely to turn again in the future and the best way to protect religious freedom and sexual freedom is for both sides to compromise. I said this before the election and I say it after the election: No one is well served by dehumanizing the other side and becoming so overconfident that they fail to consider the possibility of compromise. Just as before the election compromise benefited not only religious people, but also members of the LGBT community, today compromise benefits not only members of the LGBT community but also religious freedom. I laid out the methods and mechanisms for compromise in the book Freedom’s Edge. While the political tides continue to ebb and flow both sides must step back from the brink and give empathy a try. Doing so requires introspection, and a bit of introspection is good for everyone in the long run. Without it we will enter a downward spiral of brinkmanship that will bounce back and forth with the political tides until one side eviscerates rights on the other side. Whichever side loses it will be a huge loss for American freedom and values.

Second, we need to look not only at the Presidential election results, but also at Congress and state legislatures. The legislative process is where RFRAs and anti-discrimination laws are born. I continue to urge legislators to look at laws like the Utah Compromise as proof of concept that through compromise common ground can be found. Ideally, we will see RFRAs that protect individuals and traditional religious entities, but exclude large for-profit entities, and we will also see anti-discrimination laws that protect the LGBT community, but include exemptions for traditional religious entities. The nature and range of entities protected under such an exemption must be carefully considered as I explained in Freedom’s Edge.

Third, words and framing do have power and we are sadly seeing the results of this on a nearly daily basis as some—although certainly not all—Trump supporters have become emboldened to lash out against those in the minority, including Muslims, Jews, members of the LGBT community, African-Americans, and immigrants. I have seen this first hand as several students have come to speak with me about situations they have faced (mostly off campus) since the election. These have ranged from slurs on social media to downright harassment. As religious minorities face increased backlash the importance of RFRAs may become more clear to many progressives who lost sight of why RFRA’s are a good idea. At the same time, as members of the LGBT community face increased backlash, the importance of anti-discrimination protection will become more clear to many conservatives, or at least to those who are moderate on social issues.

What does the future hold? Who knows. I am afraid for the freedoms and values on both sides as our nation becomes more divided and divisive than ever. I beg those of you who share my commitment to protecting rights on both sides to not lose your voices or become complacent. Now, more than ever, moderates need a voice so that members of the LGBT community and people of faith can be protected against the worst instincts on each side.

Roy Moore Just Won’t Go Away (Literally)

Suspended former Alabama Supreme Court Chief Justice Roy Moore, who was removed from the bench by a judicial ethics panel after he attempted to undermine federal constitutional law on same-sex marriage (see earlier posts), literally won’t go away. The Acting Chief Justice of the Alabama Supreme Court, Lyn Stuart, sent a letter to Moore last week asking him to vacate his office since he has been removed from the bench. Moore  has refused to go. Justice Stuart has already shown great patience since she could have ordered Moore be removed for failing to vacate the premised.

In the meantime Moore has appealed the Judicial Ethics Court’s decision to the Supreme Court, and has made a request for recusal that would effectively prevent any justices who may vote against him from hearing the appeal. he has almost no chance of prevailing on appeal. At some point Justice Stuart will likely order that Moore be removed if he refuses to vacate the courthouse. The saga continues. . .

 

Massachusetts Sued by Churches Over Potential Application of Transgender Anti-discrimination Law to Religious Entities

A complaint and a motion for preliminary injunction were filed on October 10 by several churches against the state of Massachusetts. The motion seeks a preliminary injunction preventing enforcement of the new Massachusetts Facility Use law against religious entities. The case is called Horizon Christian Fellowship v.Williamson, et al. The motion for preliminary injunction can be found here: horizon-motion-for-preliminary-injunction  The complaint can be found here: horizon-complaint  This case presents a wonderful opportunity for compromise between the parties and an opportunity to engage in discourse and bridge building. It does raise, however, several very important questions.

The Massachusetts Law in Question, MGL Chapter 272, §92A and §98, is a great example of a thoughtful law designed to protect transgendered individuals from discrimination. Yet, the Gender Identity Guidance issued by the Massachusetts Commission Against Discrimination (MCAD) under the law, and an opinion issued by the State Attorney General, take what is otherwise a good law and render it constitutionally problematic by applying it to churches and other religious institutions.

The Guidance, which can be found here: gender-identity-guidance, states on page 4: “Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”

The problems with this excerpt are significant. It makes an assumption that the religious functions of a religious entity are limited only to religious services. Of course, for many faiths every activity has religious import, and for many activities such as feeding the hungry and bringing the community together are more important than worship services. Either way, the longstanding Ecclesiastical Abstention Doctrine, which I discuss in Freedom’s Edge, and the Doctrine of Church Autonomy which is based in part on the Ecclesiastical Abstention Doctrine, prevent government from deciding what is important to a religion and what a given religion’s theology demands. These doctrines also prevent government interference in core religious functions and decisions.

I think this is an opportunity for bridge building. Whatever the churches think about the Massachusetts law as applied to the rest of society, the state can compromise here and settle the case by amending the legislation (and the Guidance) to include an exception for traditional religious entities such as houses of worship. Massachusetts could then enforce the law in all other contexts, including against for-profit entities that claim religious exemptions to the law. The reasons for this distinction between traditional religious entities and for-profit entities is a major focus of Freedom’s Edge. Massachusetts does not have a RFRA protecting for-profit entities, and those entities are not protected by the legal doctrines mentioned above, so there is no legal requirement to protect them.

Of course, this leaves a much harder question. Houses of worship and for-profit entities that claim religious exemptions are not the universe of religious entities. What about religious non-profit charities that serve the general public? Massachusetts may be genuinely  concerned that if it exempts religious entities, even if it is clear that for-profit entities are not included in that protection, the exemption might apply to large non-profit religious charities that serve the general public. This is a harder question which will need to be answered even if the case settles. I will not address the question in great detail here (it is addressed in several contexts in Freedom’s Edge).

Non-profit religious charities often serve the religious missions of the faiths that fund and/or run them. If they are forced to follow the new law they may close down thus harming the many people of all faiths that they serve. On the other hand, transgendered individuals face constant discrimination and are frequently overlooked in the dualistic gender dynamic society often promotes. The harm this causes has been well documented, including increased rates of suicide and other serious concerns. Laws like the one in Massachusetts, except as applied to traditional religious entities, are long overdue. So what should be done about non-profit religious charities that serve the general public? I think a good solution, albeit one that will disappoint both sides, is to allow the state to enforce the anti-discrimination provisions against these non-profits that serve the general public, but allow the non-profits to be exempt from the facility use (bathroom) elements of the law. First, few religious non-profit charities would refuse to serve transgendered individuals and those that do could be penalized under the law if they are open to the general public. This is not an ideal compromise and I will continue to think about a better approach. I hope you do the same. Hopefully someone far smarter than I can come up with a better approach. Until then, this compromise is a start.

Reflecting on Religious Freedom and a Case of Terrible Religious Discrimination

Yesterday was Yom Kippur and last week was Rosh Hashanah. During this period of celebration, reflection, self-evaluation, and repentance I had occasion to learn about a terrible violation of religious freedom. Sadly, it occurred at a public university in the Western part of my state, Michigan (it was not the University of Western Michigan).

A student asked his English Professor if it was okay to miss class for Rosh Hashanah. The professor said the student would only be excused if he wrote a paper on the evils of Israeli occupation. Yes, you read that correctly! I do not even know where to begin to address the legal problems with this situation.

First, there is obvious discrimination in this situation. The professor apparently assumed that because the student asked to miss class for a Jewish holiday the student must support occupation. This stereotyping by itself is remarkably discriminatory and clearly violates Michigan Law. As anyone reading this probably knows there are many diverse views within the Jewish Community on occupation of Palestinian land, and to assume that everyone has the same view and then to use that stereotype as a weapon when someone seeks religious accommodation is the essence of discrimination, but there is more.

Almost lost in the dark glow of this brazen discrimination is the fact that denial of the requested accommodation, even without the bigotry attached to that denial, violates Michigan Law. In McCready v. Hoffius, 586 N.W.2d 723 (Mich. 1998), vacated and remanded on other grounds, 593 N.W.2d 545 (Mich. 1999), the Michigan Supreme Court held that the free exercise provision in the Michigan Constitution requires that government have a compelling interest to deny a request for a religious accommodation. Here, the public university professor is a state actor and denying the requested accommodation, or placing such an absurd requirement in order to grant the accommodation, violates the Michigan constitution.

Michigan does not have a RFRA. Perhaps if we did this sort of thing would be easier to avoid since public universities would need to draft clearer religious accommodation policies (although MSU, where I am a faculty member, has a good policy on religious accommodation). This is another good reason for all states to have RFRAs so long as they do not protect for-profit entities (see earlier posts for this latter qualification).

Alabama’s Roy Moore Suspended

An Alabama judicial ethics court announced today that controversial Alabama Chief Justice Roy Moore will be suspended from the bench through the end of his term. This effectively removes him from the bench permanently since he will turn 70 before he would be eligible to be elected yet again, and Alabama has an age limit for active judges.

As you may recall Moore issued a memo to state probate judges in January, 2016 informing them that an order issued by the Alabama Supreme Court in March, 2015 remained in full force and effect. That order required Alabama probate judges to refuse to issue marriage licenses to same-sex couples. This violated both the U.S. Supreme Court’s decision in Obergefell v. Hodges and a Federal District Order specifically applicable to Alabama. Moore argued that he was simply clarifying the state supreme court order was still in full force and effect and that he did not comment on federal law. The Alabama judicial ethics court held that the memo issued by Moore violated Federal Law and violated his duties as a Justice.

Freedom’s Edge Now Widely Available and a Note About the Masterpiece Cakeshop Case

As promised in an earlier post, I am happy to announce that Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America (Cambridge University Press 2016) is now widely available through the CUP website, Amazon.com, BarnesandNoble.com, etc. The paperback and electronic editions are far less expensive than the hardcover edition, which is primarily designed for libraries.

Also, an important note for those who have been following the Masterpiece Cakeshop case, which is currently before SCOTUS on a Petition for Writ of Certiorari (a petition requesting that the Court hear the case). On September 15 SCOTUS issued an order extending the time for respondents to file their Brief in Opposition to the Petition until November 29, 2016. Once the Brief in Opposition is filed the petitioner can file a Reply Brief. This is usually done within 10 days after the filing of the  Brief in Opposition. This blog will keep you posted as we move toward the SCOTUS’ decides whether to hear the case.

As mentioned in an earlier post the Court denies most petitions for certiorari, but some commentators believe the Court will hear this case. I am not convinced the Court will hear the case because the state courts which have heard cases involving public accommodations have generally been in agreement, and of course, state laws vary widely. The Court would need to be convinced the case presents an important issue under the United States Constitution. The problem is that any argument the Colorado anti-discrimination law is not one of general applicability is weak so the Court’s decision in Employment Div. v. Smith (a case I think was wrongly decided) makes the Free Exercise Clause claim nearly impossible to win. The Free Speech claims are a possible basis for granting the petition, but it is hard to guess what the Justices might think of those claims. On the other hand, the petitioners argue that the United States Courts of Appeals are split on the constitutional issues, which can be quite important in getting the Court to hear a case, and the case presents questions of great public importance with significant implications for both sides. Thus, guidance from the Court could be helpful.

RFRA Insights From 7977 Miles Away

I apologize for not posting over the last few days. I took a whirlwind trip to Hanoi, Vietnam to speak at an amazing conference about religious freedom issues at the Vietnam National University Hanoi, University of Social Sciences and Humanities. Vietnam is working on important religious freedom legislation which could benefit many different groups, including indigenous religions. I was there to speak about RFRAs in the U.S. and the Japanese Shuukyou Hojin Ho (Religious Juridical Persons Act). While the latter law is fascinating, this post will focus on two very interesting questions that members of the audience asked about RFRAs.

The first question was how robust religious freedom legislation can best be applied in order to allow government to maintain national security (and local security). Given the concerns raised by extremists in the nearby Philippines this question was quite apropos. The second question dealt with protecting sacred sites of indigenous religions (of which there are many in Vietnam). I answered the questions under both RFRA and the Japanese Shuukyou Hojin Ho. The results were similar; although for somewhat different reasons. I will focus only on RFRA here.

Security: Under RFRA the Compelling Interest Test allows government the flexibility to act in order to protect people who could be harmed by a religious individual or group. Government always has a compelling interest in protecting the health and safety of the people. Significantly, however, the requirement that government action designed to protect a compelling interest be narrowly tailored, along with the requirement that there be evidence supporting the compelling interest, prevent the government from simply targeting unpopular religions under the guise of generally applicable security laws. This latter point is important, because as we see in Russia today security concerns are being used to persecute and ban religions that pose no security threat whatsoever, such as Jehovah’s Witnesses. In the U.S., RFRAs give the government the power to act to protect security, but not to interfere with religions that threaten only the current concerns or values of the government (as has happened in Russia and elsewhere). Of course, the U.S. government pushed the limits of this under the inappropriately named Patriot Act. Still, as a practical matter this is a far cry from the use of security concerns in some countries to quash unpopular religions.

Sacred Sites: RFRAs and AIRFA (the American Indian Religious Freedom Act as amended in 1994) have the potential to protect sacred sites of native religions; although under the original version of AIRFA and under the Free Exercise Clause, this protection was incredibly weak. RFRA was, of course, passed in response to Employment Division v. Smith, which held that ritual use of peyote by Native Americans was not entitled to a mandatory exemption under the Free Exercise Clause. The 1994 Amendments to AIRFA were also passed in response to Smith, as well as in response to an earlier case called Lyng v. Northwest Indian Cemetery Protective Association. In that case SCOTUS held the government could build roads through sacred sites even where the road construction would effectively destroy Native American religions (ultimately, the roads were not built through that land thanks to the findings of a report issued by the United States Forest Service). Today the Federal and State RFRAs, along with AIRFA, can be used to protect sacred sites. As recent events in Montana demonstrate, however, Native American sacred sites located on government controlled land are subject to far more risk than they should be.

The Vietnamese currently protect native sacred lands as cultural rather than religious sites, and the level of protection can be quite low. It appears that stronger religious freedom protection would allow less interference with these sites for a variety of reasons well beyond the scope of this post. Here, RFRAs can serve as a model, even as we still grapple with these issues in the U.S. Given all the recent battles over RFRAs it was heartening to see that more than 7900 miles away from my home some brilliant people are working to create religious freedom in a different cultural and political context, and that perhaps they can learn from the mistakes made in the United States and elsewhere as they work to protect sacred sites in their incredibly diverse culture.

FREEDOM’S EDGE: RELIGIOUS FREEDOM, SEXUAL FREEDOM, AND THE FUTURE OF AMERICA (CAMBRIDGE UNIV. PRESS) IN PRINT NOW!

I am happy to announce that Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America (Cambridge Univ. Press 2016) is now in print. It should formally move from “preorder” to “available” on the CUP website by next week, and on Amazon, etc. . . shortly thereafter. I will post a formal announcement on the blog once I have confirmation it is immediately available through CUP, Amazon, and Barnes & Noble.

Most importantly, however, I want to thank the folks who agreed to read the finalized proofs because I did not have the ability to thank them in the book since it was already going to press when they read it. I selected a few folks on each side, both non-lawyers and lawyers, with strong background on these issues. These folks were kind enough to read the book after I received the final proofs to help me gauge reader response.

Writing a book on this controversial topic for a broad audience, consisting heavily of non-lawyers with an interest in these issues, students, lawyers, and legal academics, was daunting. Doing so from a moderate, non-judgemental perspective seeking to protect both sets of freedoms to the greatest extent possible was perhaps more daunting given the highly polarized times in which we live. The readers provided great insight and I am humbled that they found the book to be so balanced, even if some might have preferred I take their side. I was most humbled that the non-legal readers felt they understood the law better after reading the book and the legal readers still found the book to be highly useful. Thank you for taking the time to read the book!