Yesterday, the Administrative Tribunal Court in Nice, France struck down the bans imposed on Burkinis by a number of towns because the bans were not supported by an adequate legal justification. The court held that Burkinis do not pose a risk to safety or public order. The towns imposing the bans had tried to justify them based on the recent terror attacks in France. The court noted that banning the Burkini does not aid in promoting public safety and order.
Many people have been following the news on mandatory vaccinations for students. While vaccination requirements make total sense, and refusing to excuse those with non-religious objections to receiving a vaccination (often based on weak pseudo-science) also makes sense, the question of religious exemptions is a bit harder. A number of people have pointed out that religious exemptions have existed for quite some time and have not caused serious problems until recent times when the anti-vaccination movement began seeking personal exemptions without any religious basis. This meant that a larger number of students without adequate vaccinations began attending school.
Until recently, California allowed personal exemptions to it’s mandatory vaccination law. Religious exemptions were just one kind of personal exemption. This changed when California SB 277 became law. SB 277 removes the personal exemption, including religious exemptions, to the mandatory vaccination requirements. It does, however, contain exemptions for those who are home schooled, those who have a medical condition that prevents them from getting vaccinated, and those students who have an Individualized Education Program.
Parents of students who have religious objections to being vaccinated filed suit seeking an injunction against applying SB 277 to those with religious objections to vaccination. On August 26, in Whitlow v. State of California, the Federal District Court for the Southern District of California held that there is no constitutional basis for requiring California to provide a religious exemption to SB 277. For the most part the court’s legal analysis is quite good. Under Employment Division v. Smith, there is no duty to provide an exemption to a generally applicable law like SB 277, and California does not have a RFRA. Even if it did, the state would almost certainly have a compelling interest in preventing the outbreak of preventable diseases in schools, and requiring school children to be vaccinated would be narrowly tailored to meet that interest.
Yet, at page 9 of the opinion, the court dismissed the parents’ argument that the state needs to show a compelling interest, even under Smith, because SB 277 has a pattern of exemptions. In Smith, the Court held that Sherbert v. Verner and some of its progeny apply only to situations like unemployment where there are a pattern of exemptions under the law (I think this was a profound misinterpretation of Sherbert). In Whitlow, the district court dismissed out of hand the parents’ argument that the pattern of exemptions under SB 277 requires application of the compelling interest test. The court noted that a majority of federal courts have held the mere existence of a secular exemption does not automatically require a religious exemption. That is correct, but it does not mean the existence of secular exemptions are irrelevant. In fact the Smith Court itself wrote:
“As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason. Bowen v. Roy, supra, 476 U.S. at 708.”
Under SB 277 there are three secular exemptions and the court should not have dismissed the argument out of hand. As a practical matter it makes little difference since even if the state needed a compelling interest it most certainly has one in this context. Yet it is not good to perpetuate the idea that secular exemptions never matter in determining whether the compelling interest test applies after Smith.
The Court also addressed arguments under the Equal Protection Clause, Due Process Clause, and a claim under the access to education provision of the California Constitution. The decision can be found here: Whitlow v State of California
Remember the controversial Indiana Religious Freedom Restoration Act (RFRA)? That law led to a major culture war battle that was reported throughout the United States and around the world. In the end, the law was amended so that it could not be used by businesses to promote discrimination against anyone, including members of the LGBT community. In other words it became a standard RFRA, and as RFRAs have done hundreds of times, it is now being used to protect a religious minority from discrimination.
A Muslim prisoner named Thomas Gannon, who is being held in the county jail, was served pork and other non-Halal meat even after he informed prison officials that the food conflicts with his religion. The prison denied Gannon’s request to be served Halal food. The ACLU of Indiana recently filed suit on behalf of Gannon under several laws, including the state RFRA.
This is an important reminder of what most RFRAs are really about: Protecting those whose religion is not considered in the political process and are therefore substantially burdened by laws. As Thomas Gannon’s situation demonstrates these people can be put in untenable positions unless there is a RFRA to protect their rights. The beneficiaries of RFRAs are often, although not always, religious minorities. As I wrote in Freedom’s Edge:
“Most importantly, the vast majority of religious freedom concerns have no impact whatsoever on LGBT or reproductive rights. In fact, many such cases have no impact on anyone’s rights other than those of the religious person asserting the claim. A small list of examples includes requests for exemptions to school policies requiring students to take tests or attend class on holy days; claims for access to kosher or halal food in government-run facilities such as prisons; claims by Muslims, Jews, Sikhs, and others to be able to cover their heads in places where the law generally requires the removal of head coverings; claims by adults to refuse certain medical treatments that they believe threaten their eternal being; claims by Native Americans to be able to follow rituals regardless of contrary government regulation; and claims by churches to not be bound by laws that fundamentally impact their religious values and for which exemptions would harm no one else. These basic religious freedom claims have little or no impact on anyone but the claimants and their coreligionists.”
Yesterday a Federal District Court in Michigan decided EEOC v. R.G. & G.R. Harris Funeral Homes. A copy of the opinion can be found here: Harris Funeral Home Case. This is an interesting case involving Title VII and RFRA.
Stephens, an employee, was fired by the defendant funeral home after informing the owner that she had been struggling with gender identity issues for years and planned to undergo male to female gender reassignment. To do so she was expected to live, and dress, as a woman for a year before the procedure could be performed. The funeral home has a strict dress code for male and female employees. The owner fired Stephens because she planned to dress as a female at work. She was willing to meet the dress requirements for female employees, but she was unwilling to dress as a man. The employer testified he would not have fired her for dressing as a female outside of work.
The EEOC investigated the case and found two counts of gender discrimination. The first was the termination of Stephens, and the second was based on the fact that the employer provided clothing to male employees free of charge but not to female employees. This post will only focus on the first issue which gave rise to the RFRA defense. The case was decided after motions for summary judgment were filed by both sides (for those unfamiliar with the law on this, a motion for summary judgment is a motion asking the court to find that there are no issues of material fact and therefore the party filing the motion is entitled to judgment as a matter of law). Both sides agreed on the relevant facts.
The court held that the termination did violate Title VII under the standards applied by the 6th Circuit Court of Appeals which covers Michigan, but that was not the end of the claim because the employer asserted a defense under RFRA. Both parties agreed that the funeral home was a closely-held for-profit entity primarily owned and directed by one person (a small share of the business was owned by his children). The owner is a deeply religious person who views his job as a spiritual calling. The funeral home website, as well as some of it’s practices, reflect this religious influence. The owner believes that G-d gives people a gender at birth and that it is a sin for people to change that gender. He testified, however, that he would not have fired plaintiff if she only dressed as a woman away from work.
The court found RFRA applied to the case because the EEOC is a federal agency and the EEOC rather than Stephens filed suit. This is important because there is strong precedent in several circuits, including the 6th Circuit, that RFRA does not apply to claims between private parties. Therefore, if Stephens rather than the EEOC had filed the claim there would have been no RFRA defense. The court recognizes this at pp. 44-45. Yet, because this claim was filed by the EEOC rather than the employee RFRA applies.
After Hobby Lobby, for better or for worse, RFRA applies to for-profit entities so the funeral home is protected under RFRA. Given the nature of the business and the owner’s religious commitments the court had little trouble finding a substantial burden on a sincere religious belief. Further, the court assumed that the government had a compelling interest in enforcing Title VII. Yet the court suggests it is not clear whether there will always be a compelling interest when Title VII is violated since Hobby Lobby requires that strict scrutiny be analyzed based on the specific parties and facts involved. I am troubled by the implication that Title VII, or any anti-discrimination law, may not always serve as a compelling interest depending on the facts of a given case. As I explain in Freedom’s Edge, antidiscrimination laws should always provide a compelling interest when violated. The U.S. Supreme Court has repeatedly held government has a compelling interest in enforcing antidiscrimination laws, and if they are violated the underlying facts could not erase that compelling interest.
Of course, even when a compelling interest exists the government action must be narrowly tailored to meet that interest. This is where the EEOC lost the claim, and the court makes some excellent points on this issue. The court points out that an obvious less restrictive alternative would be for the government to require the employer to utilize a gender neutral dress code (for example, pants suits). The court notes that many employers have gender neutral dress codes. This is a good argument. Still, there are arguments favoring the EEOC as well. For example, even if Stephens wore a pants suit it is unlikely the employer would have allowed her to present as a woman by, for example, wearing makeup, etc. This case will almost certainly be appealed, and it will be interesting to see how it is decided. It could go either way on the narrow tailoring issue.
A colleague recently asked me an interesting question, and with her permission I decided to turn the answer into a blog post. The question is: What is the situation regarding religious freedom and sexual freedom in Japan? The question was a natural one because I do a lot of work in Japan.
I will break the answer into three parts: 1. Religious Freedom; 2. Reproductive Rights; and 3. Same-sex marriage rights. The situation regarding the first and second parts is reasonably clear. The situation regarding the third part, both legally and culturally, however, is in an interesting state of flux.
1. Religious Freedom- Article 20 of the Japanese Constitution reads: “Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority. No person shall be compelled to take part in any religious act, celebration, rite or practice. The State and its organs shall refrain from religious education or any other religious activity.” Clauses 1 and 3 protect the free exercise of religion. There are also a variety of laws that can be relevant to religious freedom, including education laws and something called the Shuukyou Hojin Ho (Religious Juridical Persons Act). Here, I will focus primarily on Japanese constitutional law.
Many Western religious freedom scholars are familiar with a famous Japanese Supreme Court case called, Matsumoto v. Kobayashi (The Kobe Technical College Case), which involved a Jehovah’s Witness student at Kobe Technical College who could not engage in Kendo practice. The student was otherwise a model student and had high grades. He offered to do alternative work to meet the Kendo requirement, but to no avail. For example, he offered to analyze Kendo moves or write a paper on the history of Kendo. The school refused, and as a result he was not allowed to graduate (he met all the other requirements for graduation). Eventually he filed suit.
The case made it’s way to the Japanese Supreme Court. The Japanese Supreme Court has 15 Justices that can sit as a Grand Bench, or as Petty Benches made up of 5 Justices. A Petty Bench heard the case. The court held that unless Kobe Technical College had a very strong reason to deny the student an accommodation it must accommodate the student’s religious needs. Otherwise, religious freedom under Article 20 and under the education laws would be something of an empty promise. On the other hand, the school could require that the student do alternative work to meet the Kendo requirement. In this case the school’s main argument against providing an exemption was essentially that there should be no exceptions to the rule. The court held this was not a strong enough reason to deny accommodation. Moreover, the student had offered to do significant alternative work to meet the requirement. Therefore, the student won the case.
Two interesting notes on this case. First, in Japanese law review articles and academic discourse there is a strong debate over the meaning of this case. Some scholars assert the case is not really a constitutional case, but rather a statutory case decided under the education laws. Other scholars assert that the case has strong constitutional elements as well as important elements decided under the education laws. Many, if not most, Japanese constitutional law scholars side with the second group and view the case as an important constitutional decision that also involves the education laws.
Second, the case was decided after the United States Supreme Court decided Employment Division v. Smith (the peyote case), which held that there is no duty to provide an exemption to a generally applicable law under the Free Exercise Clause. The backlash against the Smith case gave rise to RFRA. The Japanese Supreme Court’s reasoning rejected the Smith reasoning (the Japanese Supreme Court had followed other U.S. religion clause cases). In fact, the Japanese Supreme Court’s point that a government entity can require anyone receiving a religious exemption to do alternative work to meet legal requirements suggests a weakness in Justice Scalia’s arguments on behalf of the Smith majority. He argued that requiring accommodation unless the government has a compelling interest to deny the accommodation will create a slippery slope and make every person a law unto themselves. Yet, the slippery slope is exceedingly unlikely if those seeking accommodation must meet alternative requirements, an option the Smith majority failed to raise.
2. Reproductive Freedom- Today there is broad access to contraception and abortion in Japan, but the legal history on this issue—including somewhat recent legal history—is pretty disturbing. Abortion has been widely available in Japan since the 1950’s, but it is technically illegal under a 1949 law unless there is a birth defect or the life or health of the mother is at risk. The origins of the provisions in the penal code are disturbing. The birth defect element of the 1949 law was influenced by older laws that generally punished abortions, but which allowed them when the child born would have been disabled (yes eugenics was sadly an influence). Moreover, the woman’s health element of the law was originally viewed as a narrow exception to the general rule that punished the mother, but not the father, for having an abortion.
By the 1950’s, however, the exception to protect the health of the mother was broadly interpreted by the medical community and abortions became widely available. Today, there are still somewhat conflicting laws and rules on abortion, but as a practical matter so long as an abortion is performed by a doctor with the consent of the mother (and the father if available) it is allowed. The medical laws allow doctors, and women, wide discretion in determining whether an abortion is necessary, even though the penal code provision making abortion illegal unless there is risk of a birth defect or risk to the life or health of the mother is still on the books.
Interestingly, while there has never been a legal prohibition on condoms, until 1999 oral contraceptives were not allowed in Japan (the sexism and protectionism that underlay the restrictions prior to 1999 could be the subject of a multi-volume set). In fact, once oral contraceptives were approved abortion rates began to decline. Today, oral contraceptives are widely available for a variety of reasons, but surveys show that most Japanese still prefer condoms over oral contraceptives. There are a number of reasons for this including lower costs and fear of STD’s.
So, as a practical matter, reproductive rights are pretty broad in Japan even if as a legal matter things are a bit blurry. It is important to remember that Western cultural taboos are virtually non-existent in Japan so the forces driving even those who oppose reproductive freedom are not usually based in religion, but rather concern about declining birth rates. In fact, there is some concern that with negative population growth in Japan there will be an increased legal push to limit reproductive freedom. This has not manifested itself as a practical matter, but it is worth keeping an eye on.
3. Same-sex marriage- Same-sex marriage is not legal at the national level in Japan, but in July, 2016 the city of Naha in Okinawa Prefecture became the fifth city to recognize same-sex marriage as having equal rights to other marriages. This is important because in Japan marriage is a legal transaction performed at the local level and there is no requirement for any sort of marriage ceremony. Marriage ceremonies have no legal meaning in Japan. Anyone can have a marriage ceremony, and while most people do so after having the marriage legally recognized by the relevant city, many Buddhist Temples and wedding “chapels” have been performing same-sex ceremonies for years. Still, legal recognition by the relevant city is the key to obtaining the legal rights accorded other marriages.
Interestingly, the reasons same-sex marriage is not legal nationally in Japan are far different from in the West and the likelihood is good that legal recognition will continue at a quick pace now that it has begun. Moreover, the fact that wedding ceremonies (known as Kekkon-Shiki) are totally separate from the legal process of marriage, which simply requires the stamping and filing of the proper documents by the city, makes the recognition of same-sex marriage potentially easier. As long as the city recognizes same-sex marriage the legal rights accorded married couples exist, and regardless of whether the city recognizes the marriage the couple can have whatever sort of ceremony they want just like any other couple.
What are the reasons same-sex marriage is not yet legal at the national level in Japan? The religious backlash against same-sex marriage in the U.S. is virtually non-existent in Japan. One reason that same-sex marriage is not legal at the national level is that the movement toward legal recognition of same-sex marriage has been slower in Japan. Now that the movement is gaining strength cities have begun recognizing same -sex marriage. To the extent there is cultural resistance in Japan two forces may be at work, neither of which is based in religion. The first reason may have a lot more to do with xenophobia than homophobia. Japan is experiencing negative population grown at an alarming rate. Some people think same-sex marriage is likely to lead to increased adoptions and the most likely source of adopted children is other countries in Asia. Some Japanese still have a sense of Japanese nationalism and these people frown upon foreigners. Thankfully, these people represent an increasingly smaller percentage of the population, but they are still a large enough group to have an impact on these issues. To be clear the evidence supporting this is primarily anectdotal so further studies would be helpful. Second, there is a sense of tradition and culture (bunka) in Japan, and social change on family issues tends to move slowly even when there is no strong opposition to change. Some people may simply view marriage in a certain way, and even if they have no religious objections to same-sex marriage, they may view it as challenging their cultural norms. Whatever the cause of resistance to same-sex marriage legal recognition by local governments is likely to increase in the coming years.
Yesterday the United States Court of Appeals for the Armed Forces issued it’s decision in United States v. Sterling. Here is a link to the decision: U.S. v. Sterling. The case is interesting for a number of reasons. I will focus on the two main reasons. First, the case addresses the role of RFRA in the military when a soldier is disciplined for conduct claimed to be religious after the discipline is imposed. Second, the case raises an interesting factual problem because as the majority held and the dissent acknowledged as a real possibility, albeit one the dissent argued should have been determined on remand, the soldier in this case may have been asserting a “less-than-genuine religious” belief “as a pretext for inappropriate conduct.” Dissenting opinion at 2 (the language in the majority opinion is even stronger).
The facts of the case, as opposed to their meaning under RFRA, are relatively straightforward. Monifa J. Sterling was court-marshaled by the Marine Corps after several run-ins with commanding officers, the most relevant of which gave rise to the case. Sterling “had ongoing difficulties and a contentious relationship with many superiors in command, including” Staff Sergeant Alexander (her immediate supervisor). U.S. v. Sterling at 5.
The main issue in the case involved three small signs that Sterling posted at her work station, which was shared with another Marine. The signs read: “No weapon formed against me shall prosper.” This language was adapted from the bible, Isaiah 54:17. There was no indication, however, that it was a biblical passage and there was no citation to the bible. The signs were not huge, but they were large enough for people nearby to read (28 point type).
Staff Sergeant Alexander ordered Sterling to take the signs down believing their tone was inappropriate and because the desk was shared with another Marine. At this time there is no evidence that Sergeant Alexander knew the language was from the bible or that it had any religious meaning. There was evidence in the record indicating that Staff Sergeant Alexander thought the language related to Sterling’s difficulties with her. Sterling failed to remove the signs so Staff Sergeant Alexander removed them. Sterling made new ones and posted them. Staff Sergeant Alexander again removed the signs. Sterling was subject to a special court-martial for insubordination in the above described incident and several other incidents that had nothing to do with her religion.
During the court-martial proceeding Sterling explained that the language in the signs was from the bible and that she posted it in three places to represent the trinity. She did so as a reminder and personal message to herself. She also clearly cited to military directives on RFRA, and argued that her rights under RFRA were violated in the incident with Staff Sergeant Alexander. It was these RFRA claims that ultimately made it to the United States Court of Appeals for the Armed Forces.
The majority opinion found that there was no substantial burden on Sterling’s religion, in part, because:
“. . .Appellant testified that posting the signs was religiously motivated in part, she did not testify that she believed it is any tenet or practice of her faith to display signs at work. See Wilson v. James, 139 F. Supp. 3d 410, 424–25 (D.D.C. 2015). Nor does Appellant’s testimony indicate how complying with the order to remove the signs pressured her to either change or abandon her beliefs or forced her to act contrary to her religious beliefs. (citations omitted). Although Appellant did not have to provide evidence that posting signs in her shared workspace was central to her belief system, she did have to provide evidence indicating an honest belief that “the practice [was] important to [her] free exercise of religion.” See Sossamon, 560 F.3d at 332. Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.
. . .In evaluating whether taking down the signs constituted a substantial burden on her exercise of religion, we will not ignore two additional salient facts. First, Appellant never told the person who ordered her to take down the signs — which were not, like the wearing of a hijab, obviously religious to most— that they even had a religious connotation, let alone that they were important to her religion. Requiring that minimal step before concluding that an order imposes a substantial burden is certainly not onerous or unreasonable in the military context where orders are presumed to be lawful, adherence to orders is integral to the military performing its mission, and the military force is made up of diverse individuals with diverse backgrounds — with no guarantee those charged with command have any special expertise in religion. . . U.S. v. Sterling, at 18 (citations omitted).
Yet, as the dissenting opinion asserts, there are some problems with this analysis. First, whether or not there was a substantial burden on religion–and in fact, whether or not Sterling was even sincerely asserting a religious exercise–requires factual findings that are not appropriate for the appellate court and should be decided on remand. Second, while the military is certainly entitled to a great deal of deference this does not mean that RFRA’s substantial burden requirement is somehow more stringent in the military context. Rather, the military would get increased deference at the next stage of the analysis where the government must demonstrate it’s actions were narrowly tailored to meet a compelling interest. Still, the majority made some excellent arguments that in this case, unlike cases where religious individuals seek accommodations for religious practices such as wearing a hijab, there was no basis for Staff Sergeant Alexander to know at the time of the discipline that there was any religious exercise involved, let alone that taking down the signs and seeking discipline substantially burdened Sterling’s religion.
In the end I think both the majority and the dissent make excellent points. Perhaps it would have been better to analyze whether under these facts the military has a compelling interest in promoting discipline and whether the discipline was narrowly tailored to meet that interest. Recent cases make clear the compelling interest analysis in each case must be viewed under it’s own facts, and while that usually works to the benefit of those asserting rights under RFRA, in this case it might point the other way. There is an oft cited legal saying that good facts make for good decisions and bad facts can make for bad decisions. In this case perhaps bad facts made for the right result, even if that result should have occurred under different reasoning or on remand. One heartening thing is abundantly clear in both the majority and dissenting opinions: military courts will take RFRA claims quite seriously when asserted in a timely fashion. Of course, whether the assertion was timely in this case was at the center of the dispute.
Yesterday, an Alabama judicial ethics panel sent the judicial ethics case against controversial Alabama Chief Justice Roy Moore to trial. The trial will occur in September. For those not familiar with the case, Moore issued a memo on January 6 to state probate judges. The memo told probate judges, who are responsible for issuing marriage licenses in Alabama, 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.
Moore issued his January 6 memo even though the United States Supreme Court had already held in Obergefell v. Hodges that same-sex marriage is a right protected under the United States Constitution, and a federal court in Alabama ordered the state to follow that decision. Moreover, no other Alabama Supreme Court Justice was willing to support Moore’s efforts to undermine the United States Supreme Court’s decision. As with all things Roy Moore there were passionate protests outside the courthouse by people on both sides.
This isn’t Moore’s first brush with a judicial ethics panel. Moore was dismissed from the bench in 2003 for refusing to remove a large stone Ten Commandments monument from the state courthouse even after he was ordered to do so by a federal court. He somehow managed to make it back onto the state Supreme Court and now finds himself in yet another ethics probe.
So what possible defense could Moore have for this latest controversy? His attorney, Matthew Staver, argued that Moore was simply clarifying for state probate judges that the state supreme court order was still in full force and effect. Staver argued that the memo stated Moore was not providing “guidance to Alabama probate judges on the effect of (Obergefell v. Hodges) on the existing orders of the Alabama Supreme Court.”
This entire situation is a bit ridiculous. I had thought we were far beyond the days of a state supreme court justice implying that state laws (or court orders) which violate the federal constitution are still valid. That was the sort of argument made to maintain segregation after Brown v. Board of Education and later after Swann v. Charlotte-Mecklenburg Board of Education. First year law students learn about the Supremacy Clause in the United States Constitution in basic constitutional law classes. The Supremacy Clause requires that federal law trumps state law in areas where the federal government has power. Academic debates aside (which is hard for me to write as an academic :-), it is legally axiomatic that the United States Supreme Court has the authority to determine what rights are protected under the United States Constitution. As John Carroll, the former federal magistrate judge representing the Judicial ethics panel explained, Moore’s argument is pure semantics and the purpose of the January 6 memo was to undermine the right to same-sex marriage in Alabama.
There is no way to know how the state Judicial ethics court will decide the case, but my guess is that Moore will be dismissed from the bench for the second time in less than 15 years. The damage situations like this do to the cause of religious freedom nationally is palpable. The case has garnered national attention and it plays right into the hands of those who argue religious freedom=discrimination, an argument that I have repeatedly stated is unfair and distorted. Yet, when you have a state supreme court justice urging violations of federal law because of his religious beliefs (which is obvious in Moore’s case), it is easy to understand how those who oppose religious freedom may feel vindicated. Of course, Roy Moore’s actions do not represent the views of most religious people (even most of those who agree with him on the religious issues), and his actions certainly do not represent the manner in which other judges—including devoutly religious judges—will behave.
A copy of the complaint filed against Moore by the Alabama Judicial Inquiry Commission can be found here: Judicial Inquiry Commission Complaint Against Roy Moore
I just returned from a remarkable conference in Beijing sponsored by the Peking University Law School Center for Constitutional and Administrative Law and the Pu Shi Institute for Social Science. The conference focused on religious freedom issues around the world. It brought together some of the leading law and religion researchers from Asia, Europe, North America and South America. I gave four talks during the week focusing on law and religion in the United States and Japan (the two countries on which my research has primarily focused). I also listened to excellent talks from some wonderful colleagues and fielded excellent questions from Chinese professors, graduate students, and clergy.
My sense is that the U.S. is at a crossroads on religious freedom and could soon fall behind many other countries. In fact, China itself has begun to grapple with questions of religious freedom, and while certainly not an open country in that respect it is at least considering the possibility of increasing religious freedom. Meanwhile, in the U.S. the concept of religious freedom is under fire almost every day, and increasingly people seem to forget that most religious freedom claims have no impact on anyone other than the religious person or institution seeking protection. It was not long ago that the combination of religious freedom laws and protection under the Establishment Clause against government favoring religion created a system of religious freedom which served as a beacon to the world. That beacon seems to be dimming at the very time other countries increase their focus on protecting conscience and religious freedom.
I also had the chance to talk to colleagues from Europe and Asia about sexual freedom issues. The lack of anti-discrimination protection for members of the LGBT community in many parts of the U.S. and at a national level leaves us behind many of our European allies. Moreover, our legal treatment of transgendered individuals is far behind several Asian nations; although this is a remarkably complex question because the social dynamics in those nations do not always live up to the legal protections.
Of course, every nation is different, and as anyone who reads this blog knows the U.S. is in the midst of an increasingly stormy culture war. Yet, if we can increase protections for both religious freedom and sexual freedom we can navigate the current storm. If not, we may lose one or the other freedom over time, or we may batter both freedoms so badly that they stand as fractured concepts perpetually at war with each other. That is, of course, why we need to tread carefully on freedoms edge.
I will be traveling for work between tomorrow, July 29 and August 6. I will have sporadic web access so may not be able to post anything new until I return on August 7. I will do my best to keep up with comments.
For those of you who have not seen the news yet, Masterpiece Cakeshop has filed a petition for writ of certiorari (this means they are asking the Court to hear an appeal) to the United States Supreme Court. The Colorado Supreme Court declined to hear an appeal in the case. A link to the opinion from the Colorado Court of Appeals can be found here: craig_v_masterpiece_opinion_81315 A decision on whether to hear the case will not be forthcoming from SCOTUS until at least the Fall when SCOTUS is back in session.
The other day I was on a short domestic flight. Little did I know it would be a great learning experience. I was seated on the aisle and sitting across from me were two people having a friendly, but heated, conversation about Religious Freedom and LGBT Rights. Given what I have been working on I thought, wow, what a small world, but kept my mouth shut and listened. The man sitting closest to me was talking about a recent case in Pennsylvania that may have involved discrimination against an LGBT couple by neighbors (more on that case in a moment). The woman sitting next to him in the window seat mentioned the bakery case from Colorado. Neither used the names of the cases, but I figured the man was talking about the Bucktoe Manor Architectural Control Committee et. al. v. Davis et. al. case, which has recently made headlines, and that the woman was talking about the Masterpiece Cakeshop case.
The conversation was centered on who was being discriminated against the most, religious people who oppose same-sex marriage or the LGBT community. Each made arguments that were interesting and much better than what I often overhear when people raise these topics, and certainly better than I often hear in news stories. The man mentioned what had happened to the couple involved in the Pennsylvania case and their kids. I assumed he was referencing Keith Davis and his partner David Ruth and their kids. For those of you not familiar with the situation. Davis and Ruth were sued by neighbors over a fence shortly after moving to a neighborhood. A court found that neighborhood rules were selectively enforced against the couple and that their being gay seemed to be a major factor in that selective enforcement. To make matters worse the words “Get Out Fags” was spray painted on their garage (and they were the victims of other acts of vandalism). The case does not involve any religious defense, but it is a disturbing situation that involved brazen homophobic discrimination. The man on the plane did a good job explaining what happened, but then said something to the effect that there is too much discrimination against gay people and that “religion” laws are protecting people who discriminate.
The woman with whom he was speaking agreed the situation he described was terrible, but said “religion” laws are not the problem. She then mentioned the “bakery owner in Colorado,” who I assumed was Jack Phillips, the owner of the Masterpiece Cakeshop. She did a good job stating the basic situation that gave rise to the Masterpiece Cakeshop case. Phillips owned and ran a small bakery and he had no problem serving anyone, whether gay or not. He also had no problem making cakes, pastries, etc. for any family event whether the event was for a straight or gay couple. Phillips, who is a born again Christian, did however, have a problem with baking a wedding cake for a same-sex marriage because he believes it is a sin to be complicit in a marriage that is not between one man and one woman. As a result he was sued. As readers of this blog know he lost his case. Interestingly, the woman argued that this was discrimination against him for being Christian and that there are many similar cases.
I must admit that I had not viewed the case or its result as discrimination against Phillips, but rather as a possible violation of his civil liberties. The key, at least in my mind, was whether an appropriate accommodation could be found to protect his religious freedom, but which would not harm the couple who sought his services. The woman on the plane, however, made a powerful argument that “the baker” (Phillips) didn’t have any problem with members of the LGBT community and did not mean to harm anyone since he would have been happy to help the couple with anything else, so that the lawsuit and ruling in the case were targeting, i.e. discriminating, against him based on his religion. The man said that is a terrible situation and asked if she knew why the couple didn’t just go to a different bakery. He explained that if it had been him and his partner they might have been offended, but would have respected Phillips religion and gone elsewhere for their cake.
I finally chimed in and introduced myself as someone with a bit of background in the area. I thanked them both for having such a calm and thoughtful conversation and explained that it would be wonderful if more people could share and empathize with people on both sides of the debate as they each had done. I suggested that good “religion” laws are not a problem, but that some states have been trying to pass laws targeting members of the LGBT community and those are a problem. I also explained that these laws have been struck down by a court in Mississippi and are likely to be struck down in North Carolina and elsewhere when they arise. I suggested that “good” religious freedom laws protect many people from government substantially interfering with their religion.
I also suggested that perhaps both the “baker” (Jack Phillips) and the same-sex couple for whom he refused to make a wedding cake faced discrimination. The couple went to a shop for a wedding cake and they were discriminated against based on their marriage and sexual orientation. Phillips’ sincere religious belief did not minimize the pain of that discrimination. Yet, Phillips himself was the victim of a system that forced him to violate his religious tenets or stop making wedding cakes, which is a major way in which his bakery supported itself. The fact that he could make other cakes would not lessen his pain either. I suggested that the best thing would be to have strong laws protecting members of the LGBT community and strong laws protecting religious freedom, but that even then what to do about small family owned businesses was tough because they serve the general public. The ideal would be for people to just leave these sorts of businesses alone and not sue unless they discriminate against gay patrons or same-sex couples more generally, but I explained that is not likely to happen in today’s climate with both sides seeking out “test cases.”
I thanked them for their thoughtfulness and said the best hope moving forward is good people like them having rational empathetic discussion that can allow us to build bridges. I gave them each a business card and walked off the plane with a sense of hope that the middle may yet find it’s voice.