Posts Tagged ‘Supreme Court of the United States’

August 15th, 2016

Teaching religion: Refusing the Schempp myth of origins

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I was recently asked to speak about the current state of US religious freedom law. I guess it somehow seemed appropriate to do that in Indiana—at ground zero in the culture wars, where religious freedom seems to have gone to die. I used the occasion to address the peculiar relationship that religious studies as a field seems to have with the Supreme Court and its decisions—indeed, with religious freedom, American style.

July 2nd, 2015

How will the same-sex marriage ruling affect religious liberty?

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On Friday, June 28, the United States Supreme Court ruled in a 5 to 4 decision that same-sex couples have the constitutional right to marry. The Court’s ruling overturns restrictions on same-sex marriages in 13 states. While many have celebrated the landmark ruling—which was announced just before last weekend’s gay pride events in cities nationwide—the decision has also sparked concerns about the […]

March 23rd, 2015

Religious freedom at Religion Dispatches

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As part of a joint project between The Immanent Frame and Religion Dispatches, RD contributing editor Austin Dacey has written a series of posts on religious freedom in the United States. His latest piece tackles Winnifred Fallers Sullivan’s “The impossibility of religious freedom” and potential alternate regimes for legislating religious freedom in the United States.

January 22nd, 2015

Corporate veil or wall of separation?

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We stand unitedThe U.S. Supreme Court’s decision in Burwell v. Hobby Lobby raises a series of important questions for public debate. If for-profit corporations are entitled to exercise freedom of religion, then as a civil society we must consider certain questions that follow from this extension of the prerogatives traditionally granted to churches and other religious organizations, as well as to individuals acting in their private capacities. My analysis will focus on these larger questions of policy and attempt to provide some further context for the debate that should now occur.

Winnifred Fallers Sullivan, whose insights are always penetrating on these issues and worth pondering carefully, has missed the mark in her earlier reaction to the decision. She uses Hobby Lobby as an example of the reductio ad absurdum of the logic of freedom of religion, and argues that we (especially liberal exponents of toleration) are unable to reasonably deny freedom of religion in cases where the substantive rights guaranteed seem intolerable to many. I respectfully disagree.

January 14th, 2015

The privilege of spirit: The liberal concern with religious liberty claims

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Defend Religious Liberty | Image via Ronit Y. StahlA few blocks from my apartment, a neighbor has displayed a placard proclaiming “Defend Religious Liberty.” These words could encompass a range of meanings and raise any number of questions. What, exactly, does religious liberty entail? Who claims it? Who attacks it? But no one is left wondering for long, as the graphics define the intent of the sign more explicitly. Behind the capitalized words, an eagle shares space with an American flag and a cross. Defending religious liberty in the United States, the illustration bellows, is patriotic. And it means protecting Christianity.

This sign, I think, signifies the key issue for liberals in the wake of the Supreme Court’s 2014 term major religion decisions—Burwell v. Hobby Lobby, Wheaton College v. Burwell, and Town of Greece v. Galloway. The core concern is not with the mixing of religion and profit, or sexual matters. Instead, it is a gnawing sense of unease about the solicitude granted to the type of religion that has long been powerful, but is presented by its adherents as marginalized; in short, the problem lies in the twin-set of power and privilege.

January 8th, 2015

On the unreasonableness of legal religion

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We stand unitedToward the end of her Burwell v. Hobby Lobby dissent, Justice Ruth Bader Ginsberg finally gets to the heart of the problem. Describing a slew of contentious claims that might follow the Court’s decision, she asks, “Would RFRA [Religious Freedom Restoration Act] require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not?” Yes, a chorus of religion scholars might respond, how indeed? How can the Court possibly countenance all the claims advanced under the mantle of religious freedom without drawing some highly questionable distinctions? How can it possibly demarcate the limits of religious freedom without deeming some beliefs more worthwhile than others? Lines will have to be drawn.

December 29th, 2014

The zero effect doctrine

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We stand unitedIn the wake of last summer’s Burwell v. Hobby Lobby and Wheaton College v. Burwell decisions, many wondered how corporations could exercise religious liberty. Liberal discussions focused on the apparent absurdity of extending constitutional rights to ethereal legal fictions rather than flesh-and-blood human beings. While those who decried the decisions often focused on the Supreme Court’s tenuous definition of personhood, Winnifred Fallers Sullivan’s essay shifted critical attention to shaky assumptions about religion. According to Sullivan, liberal critics have overlooked tensions within their own models of religious freedom. These tensions reveal “the ramshackle structure of current religious freedom jurisprudence in the U.S.”

In this post, I want to revisit Sullivan’s focus on the category of religion. Rather than expand on her critique of the “rotten core” of religious freedom, however, I would like to use the Hobby Lobby decision to consider what kind of religious exercise the court protects. In my view, the court has invented a novel form of religious practice in which people protect their property from the polluting contact of other people.

December 18th, 2014

Hobby Lobby and the question for religious freedom

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We stand unitedWinnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously. The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”

As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.

Our choices are clear: either we sometimes accommodate, or we never accommodate.

December 16th, 2014

The Supreme Court’s faith in belief

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We stand unitedThis summer, the Supreme Court was once again at the center of the American culture wars. The media and many Americans on both sides of the political spectrum saw the Burwell v Hobby Lobby decision as a case of religious freedom versus women’s rights. The headlines blared: “How the Catholic Church Masterminded the Supreme Court’s Hobby Lobby Debacle,” “Can Corporations Go to Hell?”, “Hobby Lobby: Does God Hate Obamacare?” and “Hobby Lobby case: Religious freedom’s worth more than $35.”

The court, which ruled 5-4 in favor of Hobby Lobby, was no less divided than the press. The two outspoken former prosecutors on the bench, Justices Samuel Alito and Sonia Sotomayor, pulled no punches in their rival opinions.

July 8th, 2014

The impossibility of religious freedom

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In the last week the US Supreme Court has acted in two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.

June 26th, 2013

SCOTUS roundup: Rulings on DOMA and Prop 8

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The U.S. Supreme Court ruled 5 to 4 on Wednesday that the Defense of Marriage Act (DOMA), a 1996 law that denied federal benefits to legally married same-sex couples, is unconstitutional. The Court also declined to rule on Proposition 8, a California case that banned same-sex marriage, on technical grounds, deciding that the case was improperly before the Court. The following roundup presents a range of reactions from both sides, with a focus on the religious aspects that have long influenced this debate.

May 11th, 2012

Everson’s Children

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Everson v. Board of Education is considered a landmark of First Amendment jurisprudence. That 1947 case marks the first time the Supreme Court held that the disestablishment provision of the First Amendment is binding on the states, and not just on the federal government. The “incorporation” of the principle of disestablishment thus completed the task begun seven years earlier in Cantwell v. Connecticut, when a unanimous Court held that free exercise applied to the states. In Cantwell, the Court overturned the convictions of three Jehovah’s Witnesses, who had been arrested for unlicensed soliciting and a breach of peace.

March 7th, 2012

The world that Smith made

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There is much that could be said about the history of the Catholic Church and its dedication to the defense of religious freedom. What interests me about the formation of a new Ad Hoc Committee on religious freedom at this time is the company that the bishops are keeping today—and why the bishops’ bellicose language accusing the Obama administration of mounting a war on religious liberty seems to make sense to such a disparate and varied group. Beyond the obvious self-interest, there is a genuine urgency to the bishops’ appeal, one that is legible to a surprising number of Americans.

March 6th, 2012

Hosanna-Tabor in the religious freedom Panopticon

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Michel Foucault famously describes Jeremy Bentham’s Panopticon as a “cruel, ingenious cage” to be understood not as a “dream building … [but as] the diagram of a mechanism of power reduced to its ideal form … a figure of political technology.” For Foucault, panopticism is “the general principle of a new ‘political anatomy’ whose object and end are not relations of sovereignty but the relations of discipline: [t]he celebrated, transparent circular cage, with its high towers powerful and knowing.” In reading the Supreme Court’s decision in Hosanna-Tabor v. EEOC recognizing a “ministerial exception” to antidiscrimination law—a case hailed almost immediately as a victory for religious freedom—it is for me the specter of the Panopticon that haunts every page.

February 6th, 2012

Is religion special?

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In Religion Dispatches, Katherine Stewart asks what the Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. decision can tell us about how religion is viewed by the courts and, more broadly, by the government.

January 31st, 2012

“The Church”

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The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?”

January 19th, 2012

Religious freedom defeats secular law

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Secular law lost unanimously in the Supreme Court of the United States last week. The Americans with Disabilities Act (ADA) is a federal antidiscrimination statute that bars discrimination against employees on the basis of a disability. The ADA also contains an antiretaliation provision that prohibits employers from retaliating against employees who file charges under the statute. The statute itself does not exempt religious employers from liability. Nonetheless, the Court dismissed schoolteacher Cheryl Perich’s ADA retaliation lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School on the grounds that Perich was a minister.

January 11th, 2012

Ministerial exception upheld

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Earlier today, the Supreme Court released its decision in Hosanna-Tabor v. E.E.O.C., a case that brought into question the validity and boundaries of the “ministerial exception,” a legal doctrine that exempts religious organizations from the anti-discrimination standards of US employment law.

October 25th, 2011

Are religious institutions entitled to disobey the law?

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One recurring justification for the ministerial exception has been the “problem” of women priests. The specter of the Roman Catholic Church being forced to ordain women priests has repeatedly haunted discussions of the ministerial exception. Catholic women priests are wrongly used as a justification for the exception. It was unfortunate that the women priests issue became part of the oral argument in Hosanna-Tabor, as it distracts attention from the more important issues at stake in the exception.

October 21st, 2011

Regulating religion

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Where does the line lie between constitutional protection of religious exceptionalism and the need to enforce state laws ensuring fair treatment of employees?

October 13th, 2011

Going to law

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Last week, in the first week of its October 2011 term, the U.S. Supreme Court heard argument in a suit brought by the Equal Employment Opportunity Commission charging the local branch of the Missouri Synod Lutheran Church with illegal retaliatory firing of a Michigan parochial schoolteacher under the 1990 Americans with Disabilities Act. The ADA mandates an end to discrimination against persons with disabilities across a wide range of contexts and is considered a high-water mark of American civil rights legislation. The Church, supported by a wide array of other interested religious organizations, claims immunity from such legislation.

August 30th, 2010

Religion, the state, and a changing court

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In a New York Times opinion piece, Linda Greenhouse raises questions about how today’s Supreme Court might take a different approach to church/state issues compared to past courts.

July 23rd, 2010

Conflict resolution curtailed

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At altmuslim, civil rights attorney Sahar Aziz comments on the US Supreme Court’s recent decision in Holder v. Humanitarian Law Project (pdf), which found the provision of conflict resolution training to terrorist groups unlawful.

July 6th, 2010

Kagan opposed by secularists

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In the past weeks, Supreme Court nominee Elena Kagan has attracted the ire of countless, largely conservative, political blocs. Yet, as Maggie Hyde notes here, opposition aroused by the hearings has not been limited to traditionally conservative camps. The prime motivation behind atheists’ and secularists’ lukewarm reception? Kagan is slated to replace Justice John Paul Stevens—perhaps the justice most committed to the doctrine of separation between Church and State that the court has ever seen. And her credibility among secularists and atheists is tenuous, to say the least.

June 28th, 2010

Ruling against discrimination

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The Supreme Court ruled against the Christian Legal Society at the University of California’s Hastings College of Law, which claimed that the First Amendment protected its right to refuse membership to gay and lesbian students. The Court upheld the college’s decision to prohibit such action, ruling “5-4 that the college’s decision did not violate the group’s First Amendment rights of association, free speech, and free exercise.”