Brookings: Experts - Melissa Rogers

Law’s Virtues: Exploring the Tensions between Law and Values in the United States

Thu, 31 Jan 2013 14:00:00 -0500

Event Information

January 31, 2013
2:00 PM - 3:30 PM EST

Saul/Zilkha Rooms
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

Throughout our nation’s history, lawmakers have had to balance serving the common good with the protection of individual freedom. This task is particularly difficult in a pluralistic liberal democracy such as the United States, especially when it comes to sensitive moral issues, such as abortion or euthanasia. Should the law be morally neutral so as not to impose a particular set of values on society as a whole? Or should the law make a moral judgment on such issues?

On January 31, Brookings Senior Fellow William Galston moderated a discussion of Law’s Virtues: Fostering Autonomy and Solidarity in American Society (Georgetown University Press, 2012), by legal scholar and moral theologian Cathleen Kaveny. Kaveny argues that legal frameworks are never value-neutral, yet sound lawmaking must take more than morality into account when deciding how to regulate particular actions. Kaveny discussed her vision for a realistic relationship between law and morality. After her presentation, a panel of experts joined the conversation.

This event was hosted by the religion, policy and politics project at Brookings and is also part of the Governing Ideas series intended to broaden the discussion of governance issues through forums on timely and relevant books on history, culture, legal norms and practices, values and religion.

Four More Years for the White House Office of Faith-based and Neighborhood Partnerships

Mon, 17 Dec 2012 09:00:00 -0500

Event Information

December 17, 2012
9:00 AM - 12:00 PM EST

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue, N.W.
Washington, DC 20036

The federal government has a long history of partnering with religious and secular charities in an effort to serve people in need. Former President George W. Bush formalized these efforts by creating a White House office and a number of centers across various federal agencies, and he also established a specific set of church-state rules to govern these partnerships. President Obama retained this White House office and has continued some Bush policies, while making notable changes in other areas.

On December 17, the religion, policy and politics project at Brookings hosted an event featuring comments from Joshua DuBois, executive director of the White House office, and other Obama administration officials on the past work and future plans for the office. Following the presentations, a panel of experts responded and offered their thoughts regarding priorities for this White House office during President Obama’s second term. Speakers will explore how the Obama and Bush White House offices differ, whether the office is succeeding in meeting the needs of people who are at the margins in today’s society, and what the prospects are for resolving contentious issues such as religion-based decision-making regarding government-funded jobs.

Brookings scholars E.J. Dionne and Melissa Rogers co-moderated the panels and took audience questions after each.

Audio

Four More Years for the White House Office of Faith-based and Neighborhood Partnerships

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Transcript (.pdf)

Event Materials

20121217_faith_based_c

Obama and the Two Types of Marriage

Melissa Rogers — Thu, 17 May 2012 15:01:00 -0400

In the wake of President Obama's declaration of his personal support for the right of same-sex couples to marry under civil law, the nation is understandably focused on debating the merits of this position. Three related points from President Obama's announcement, however, deserve our attention as well.

First, President Obama noted that there is an important difference between civil marriage and religious marriage. The state defines civil marriage, which serves as the gateway for a wide variety of government benefits, rights and privileges. Religious marriage, on the other hand, is defined solely by religious communities.

These categories may be fuzzy in our minds because current law not only respects the ability of clergy and religious communities to define and bless religious marriage, it also allows clergy to solemnize civil marriage. That's why one often hears a minister conclude a wedding by saying, "By the authority vested in me by the state of X, I now pronounce you husband and wife." Setting aside the oddity of a minister claiming the authority of the state rather than a higher power, the fact that the state allows clergy to bring a civil marriage into being does not mean it can require clergy to bless or recognize any relationship the state defines as civil marriage. Some clergy won't perform interfaith unions, and many refuse to perform a wedding when they believe a couple is unready for the momentous commitment of marriage. Just as the state cannot force clergy to perform these marriages, the state cannot require a clergy person to marry same-sex couples. In his remarks, President Obama affirmed these ideas, emphasizing that he was "talking about are civil marriages and civil laws," as opposed to religious marriages, and that "churches and other faith institutions are still gonna be able to make determinations about what their sacraments are -- what they recognize" as religious marriage.

Second, the president expressed his support for appropriate religious exemptions in legislation recognizing same-sex marriages. In his comments to ABC News' Robin Roberts, President Obama pointed to the example of New York as a state that has been "respectful of religious liberty" in this regard. New York's same-sex marriage law says the state may not "penalize, withhold benefits, or discriminate" against a minister for the minister's refusal to perform a marriage for same-sex couples. Religious organizations and their employees may not be required to provide services, facilities or goods "for the solemnization or celebration" of same-sex marriages, and refusals to do so may not form the basis of any civil claim, nor result in any state penalties, withholding of benefits, or discrimination. This New York law also says the state's recognition of same-sex marriage will not affect things like the ability of religious organizations to make religion-based employment decisions and religious colleges and universities to limit married student housing to heterosexual couples, if that is their practice.

Given constitutional protections for free exercise and religious autonomy, courts would recognize certain exemptions for religious objectors from same-sex marriage laws even without specific legislative language. Spelling these matters out in legislation, however, helps to clarify what is and what is not at stake and to reassure those who would define religious marriage in ways that differ from the state's definition of civil marriage. It may also result in the adoption of wider free exercise protections than is constitutionally required where such protections adequately respect competing interests and are otherwise constitutionally appropriate. There is serious debate about issues like whether some small businesses should be exempt from obligations to provide goods or services for same-sex marriages where business owners have religious objections to doing so and whether religious organizations receiving government grants should be exempt from non-discrimination conditions on the use of grant funds. At the same time, there is no question that exemptions like those in New York law are widely supported, including by President Obama.

Finally, President Obama insisted that conversations about these sensitive and important matters should be conducted in a spirit of civility, and that proponents of same-sex marriage should resist the temptation to demonize those on the other side of the debate. Obama said:

[I]t's important to recognize that folks who feel very strongly that marriage should be defined narrowly as between a man and a woman, many of them are not coming at it from a mean-spirited perspective. They're coming at it because they care about families. ... [A] bunch of them are friends of mine ... pastors and ... people who I deeply respect.

Likewise, Governor Mitt Romney has called this issue is "a very tender and sensitive topic." As President Obama and Gov. Romney recognize, we can state our beliefs on these issues plainly without slandering those who take a different point of view.

Americans must decide whether they support or oppose recognition of same-sex marriage in our civil laws, but they also must determine how religious objectors will be treated where same-sex marriages are recognized and the spirit in which these debates will be conducted. President Obama's remarks on all these scores are worthy of attention and consideration.

This piece originally appeared in The Huffington Post.

Authors

Melissa Rogers

Publication: The Huffington Post

Image Source: © Shannon Stapleton / Reuters

The Quest to Balance Health Care Providers’ Consciences and Patients’ Needs

William A. Galston and Melissa Rogers — Thu, 23 Feb 2012 00:00:00 -0500

Recent controversies, such as the HHS rule on insurance coverage of contraceptive and sterilization services, raise fundamental and politically consequential questions. But they take place against a backdrop of longstanding tensions between claims of conscience and laws of broad scope and application—tensions well-known to experts but less so to public officials and most citizens.

In a new paper, William Galston and Melissa Rogers provide a broad overview of conscience from a religious, philosophical and legal perspective, and then home in on conscience in the context of health care. The paper surveys current federal and state law and regulation governing the right to conscientiously object in the provision of health care, and explores the ongoing tensions between claims of conscience and calls for access. The paper concludes with suggestions for policymakers when shaping laws and regulations in this arena.

Some of the questions explored in the paper include:

Who should be permitted to refuse to provide, pay for, or assist in the provision of certain heath care services?
Which institutions, if any, should be permitted to refuse to provide, pay for, or assist in the provision of certain heath care services?
What are appropriate grounds for conscientious refusals?
What should conscientious objectors be able refuse to do? Should providers be able to raise an objection regarding any health care service, or just some of them?
What conditions must be present for conscientious objections to be honored?
What sort of rules should govern disclosures of conscientious objections, notifications regarding alternative providers, and referrals to other providers?

Galston and Rogers offer a useful guide to the roots of this debate and highlight potential paths to common ground.

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Download the Paper

Authors

Image Source: © Kevin Lamarque / Reuters

Honoring Religious Objections and Access to Contraceptive Coverage

Melissa Rogers — Fri, 17 Feb 2012 00:00:00 -0500

At the heart of President Obama’s announcement last week on the contraceptive coverage mandate are two goals: ensuring that religious organizations will not have to pay for or provide coverage for services that are objectionable to them and that employees of objecting religious organizations will have access to these benefits on the same basis as other employees.

These are the right goals. As the administration moves forward to implement them, it should carefully consider legitimate free exercise concerns and distinguish them from broader grievances about the contraceptive mandate and the Affordable Care Act as a whole.

In his February 10 remarks, President Obama offered a specific proposal about how to reach the goals of honoring religious objections and access to contraceptive coverage. Drawing on the provisions of certain state laws, the president proposed requiring insurers to provide these benefits to employees of objecting religious organizations via insurance contracts that are separate from the contracts between the insurers and objecting religious employers, with no referrals by these employers. The aim is to take objecting religious organizations out of the equation, while ensuring employee access to important health benefits. Many Catholics and other people of faith have said this proposal works well for them, and it makes good sense to me.

Since the announcement, however, some other Catholics and religious people have said even this accommodation would substantially burden the free exercise of their institutions. Some religious employers would like, for example, to be able to purchase insurance from insurers that do not offer contraceptive coverage so that none of their money supports such coverage in even the most remote way. Likewise, some nonprofit religious insurers have said they would object to a requirement that forced them to provide contraceptive coverage. The administration should address legitimate concerns like these in the upcoming rulemaking process. It has already pledged that religious employers with self-insured group health plans will not be required to pay for or provide coverage for services to which they object, while employees of those organizations will be guaranteed such coverage by other means. The solution the administration formulates for self-insured health plans may suggest fixes for these other cases as well.

Why should the administration address concerns like these? As UCLA Law Professor Eugene Volokh recently noted, free exercise burdens turn on the subjective understanding of the religious practitioner or body. One person’s or body’s understanding of their faith can differ from another’s. It is not the government’s job to try to determine what is the “right” understanding of a faith; instead, its job is to assess whether the faith practice is sincere and the burden on it is substantial. Having already demonstrated an interest in accommodating spiritual obligations, the administration can and should consider different understandings of those obligations.

Another key part of the administration’s proposed rule will be minimizing differences between what its current rule calls “non-exempted” religious employers (such as religious hospitals, universities, and social ministries) and “exempted” religious employers (basically, churches and other houses of worship). The ideal approach—rather than unnecessarily carving out distinct regulatory regimes for two different sorts of employers—is simply to include a single modified exemption, while still ensuring that employees of exempted organizations could access contraceptive coverage. The administration chose not to do this, but in his remarks last week President Obama treated these two sets of organizations the same way and announced a policy that has the practical effect of broadening the exemption. In other words, the current exemption is a faulty one that should not be extended to other areas of federal law; but, with care, the administration should be able to address the problem here in a workable way.

At the same time, the Obama administration should distinguish between legitimate religious liberty concerns about the exemption and broader grievances about the contraceptive mandate and the Affordable Care Act as a whole. For example, those who say the only way to remedy the free exercise problem is to scrap the contraceptive mandate—or the entire Affordable Care Act—are wrong. They are also badly mistaken when they suggest it somehow violates the free exercise rights of a religiously affiliated hospital, social service agency, or university for an insurer or the government to offer their employees contraceptive coverage. Further, there is certainly no free exercise obligation to exempt all employers from an obligation to provide contraceptive coverage due to their CEOs’ personal religious convictions.

There’s a balance to be struck here because this debate involves more than simply the interests of religious objectors. In 2005 a unanimous U.S. Supreme Court said that when considering free exercise accommodations, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." This constitutional principle deserves attention here, too. Also, some legal scholars have suggested employees of objecting religious employers may have Religious Freedom Restoration Act claims of their own if they are denied these federal benefits. In any case, a policy that would operate to allow employers’ religious convictions to deny hundreds of thousands of Americans federal benefits would be disturbing. It’s also worth noting that expanding contraceptive coverage will help greatly to reduce the number of abortions, a goal with strong support in both the pro-choice and pro-life ranks.

If all of this sounds complicated, that’s because it is. Indeed, my hope is this episode will prompt us to re-consider our employer-based health insurance system. It is right to honor the religious objections of faith-based employers, but it is also right to ask why we retain a system where the health coverage employees receive may be limited by those objections.

While the employer-based system endures, however, we must confront the dilemmas it presents. President Obama’s commitment to the twin goals of honoring objections and access and to opening a new rulemaking process provides the framework necessary to address these issues in constructive ways. The administration should continue to fast-track this policy-making process, even though obligations on religious institutions will not kick in until August 2013. It’s in everyone’s interest to try to find an agreeable solution to this problem. No one can be certain how lawsuits and legislation will fare, and no one can safely predict the outcome of the next election.

These matters are complex, but our debate over them need not be caustic. May cool heads and fair-mindedness prevail as we move forward.

This piece originally appeared in The Huffington Post.

Authors

Melissa Rogers

Publication: The Huffington Post

Image Source: © Jason Reed / Reuters

President Obama's Birth Control Solution Balances Religious Freedom and Women’s Health

Melissa Rogers — Fri, 10 Feb 2012 00:00:00 -0500

Today the White House announced a revised rule regarding the contraceptive mandate addressed by Department of Health and Human Services Secretary Kathleen Sebelius on January 20, 2012.

Given the White House description of the revised rule, it both resolves the religious liberty concerns and respects the interests of Americans who would like to have these important health benefits. President Obama and his administration deserve great credit for implementing a solution that honors free exercise rights and fairness. I deeply appreciate the fact that the White House has taken the religious community’s concerns so seriously.

Under the revised rule, no religious employer that objects to providing contraceptives and sterilization services will have to pay for or provide coverage for it. The plan rightly recognizes that the government should not force religious communities to pay for or provide services forbidden by their faith. Also, no objecting religious employer will be required to make referrals for services to which they object. This will remove any burden on the free exercise rights of religious employers. At the same time, employees of objecting religious hospitals, universities, and social service agencies will have access to these important benefits directly from insurers. These benefits strengthen health and families and help to reduce the number of abortions.

My faith tradition and conscience support the use of contraceptives, so for me this was never about whether the use of birth control is theologically sound. It was about the freedom of religious bodies to practice their faith as they see fit, not as government sees fit. The latitude of religious communities to define and practice their faiths is a precious liberty, one cherished by people of all theological and political stripes. Just as we would not want the government to force pacifist religious organizations to have to pay for and provide military training for their employees, we do not want to force Catholic and other religious organizations to pay for and provide services that are objectionable to them.

With this solution in place, I hope we can move beyond this acrimonious debate and work together on the serious challenges facing our great nation.

Authors

Melissa Rogers

Image Source: ï¿½ Joshua Roberts / Reuters

Continuity and Change: Faith-Based Partnerships Under Obama and Bush

Melissa Rogers — Mon, 13 Dec 2010 00:00:00 -0500

"Obama stimulus pours millions into faith-based groups," read the title of a December 3, 2010, Politico article. It reported that $120,000 in stimulus funds (funds made available by the American Reinvestment and Recovery Act of 2009) went to Christian Churches United of Harrisburg, Pennsylvania, to pay for food and shelter for local homeless people, and $277,000 was awarded to the Chicago-based Inner City Muslim Action Network for a green-jobs program. To promote energy efficiency, stimulus funds bought an Indiana church a new heating and cooling system and new windows for a church-related school in Wyoming, according to Politico. Overall, at least $140 million in stimulus money has gone to faith-based groups, Politico said.

The Politico piece raised an important question: Almost ten years after President George W. Bush opened the first White House Office of Faith-Based and Community Initiatives and two years into the presidency of Barack Obama, is there any difference between these administrations' policies and practices on partnerships with community organizations, both religious and secular?

Executive orders signed by Obama and Bush provide some fodder for this discussion, as does Politico's reporting and data available at the recovery.gov website, the website that tracks spending of stimulus money. These materials reveal that there are many points of continuity between the two administrations on these issues but also some crucial differences.

Continuity

Both President Obama and Bush have said the government must allow religious organizations to compete on an equal footing with secular organizations for federal social service funds. Spot checks of information on recovery.gov suggest that this policy is being observed.

For example, one component of stimulus funding was aimed at preventing individuals and families from becoming homeless and at helping people who are already homeless. The federal Department of Housing and Urban Development granted $621,187 to Dauphin County, Pennsylvania, for these purposes, and it in turn made sub-awards to seven Pennsylvania nonprofits that were selected on a competitive basis. As Politico noted, one of these nonprofits is Christian Churches United of the Tri-County Area (CCU), whose goal is "to provide assistance to many more people in need than one church could provide on its own." The organization is supported by area churches but is separately incorporated from them. CCU received a subaward of $120,623 to provide services to people who are homeless or at risk of becoming homeless. Dauphin County also made six sub-awards to other nonprofits for these purposes, some with explicit religious motivations and others that articulate their goals in secular terms. (Politico did not discuss grants made to secular groups in its story, but information about religious and nonreligious organizations that receive stimulus funds appears on the recovery.gov website.)

The Obama and Bush administrations also have declared that religious organizations may retain a religious name and mission, select board members on a religious basis, and provide federally funded social services in buildings containing religious art, scriptures, and symbols. These policies aim to ensure that religious organizations are able to maintain their religious identities even as they deliver some government-funded services.

Further, both administrations appear to have implemented similar policies regarding government grants for capital improvements of buildings used for religious purposes, including houses of worship. According to the Politico story, Castleton United Methodist Church in Indianapolis, Indiana, received stimulus funds to install a new heating and cooling system. These funds were part of the Energy Efficiency and Conservative Block Grant Program, a program that helps American cities, states, and counties, reduce their total energy use. The federal Department of Energy made a grant to the state of Indiana for this and related purposes, and the state then used a competitive process to award grants to 60 small businesses, health care facilities, institutions for higher education, and nonprofits for energy efficiency upgrades to their facilities. In addition to Castleton United Methodist Church, other non-profits that received subawards include an animal shelter, Big Brothers/Big Sisters of Indiana, a day care center, a food bank, a museum, and another church.

Politico says EPA officials notified religious groups that, although "there ha[d] been some uncertainty and erroneous information" on the issue, "the Recovery Act has no prohibitions on the use of Recovery Act funds being used to benefit churches/faith-based institutions." This guidance was based on advice from the general counsel's office in the Department of Energy, which also said: "The [Energy Efficiency and Conservation Block Grant] statute and [State Energy Program] statute and regulations have no prohibitions on federal funds being used to benefit churches/faith based institutions. As long as the activity to benefit churches/faith based institutions is an approved, eligible activity pursuant to the [relevant statutes and regulations,] it may be funded by either program."

Like Bush, Obama also appears to have allowed churches and other houses of worship to seek direct federal social service funds. And, at least thus far, the Obama administration has permitted religious groups to make religion-based decisions regarding government-funded jobs, a policy former President Bush implemented widely. While then-candidate Obama promised to make changes to this policy once in office, and the White House has said it is reviewing these issues, the administration has so far left in place all of the policies the Bush administration developed on these issues, including a Department of Justice opinion and a provision in an executive order and associated regulations.

Change

At the same time, an executive order President Obama signed on November 17, 2010, makes some important reforms of the Bush rules. This new order amends an executive order President Bush signed in 2002, and it applies to all federally funded social service programs. The changes the new order makes can be lumped into three broad categories.

First, the 2010 order clarifies some matters the 2002 order had left somewhat murky. In recent years, there's been confusion about whether providers could use government grant money to pay for counseling involving religious instruction, for example, or mix religious content into programs funded by government grants. The 2010 order makes it clear that direct aid cannot be used to pay for explicitly religious activities, meaning activities involving overt religious content such as prayer, worship, and proselytizing. It also calls on an interagency group to provide guidance on ways to cleanly separate any privately funded religious activities from a program subsidized by direct government aid. At the same time, the 2010 order emphasizes that religious providers are welcome to compete for government social service funding and maintain a religious identity as described above.

Another concern the new executive order sought to address was the fact that the 2002 order had said beneficiaries couldn't be required to "actively participate" in religious activities. This language did not make it clear that beneficiaries could not be required even to attend religious events or services. The 2010 order ends the ambiguity. It says beneficiaries have a right to refuse "to attend or participate in a religious practice."

Given some confusion about the rules that apply to subawards of federal funds, the new order also emphasizes that church-state standards and other standards apply to subawards as well as prime awards. In other words, subgrantees and subcontractors are subject to the same rules that apply to the nongovernmental organizations receiving grants and contracts, such as requirements that programs funded by direct federal aid must be separated from privately funded activities that are explicitly religious.

The second type of change the 2010 order makes is that it sets forth a number of key religious liberty mandates that had been missing from the 2002 order. It states, for example, that beneficiaries have the right to an alternative provider if they object to a provider's religious character, and that beneficiaries must be given written notice of their religious liberty rights at the outset. Similar rules have applied to federally funded substance abuse and mental health programs for years. This part of the new executive order is modeled on rules drafted by the Department of Health and Human Services during the presidency of George W. Bush in response to statutory requirements. The Bush administration, however, rebuffed requests to extend these rules to all federally funded social services. The Obama administration has acceded to them.

The 2010 order requires the government to monitor the programs it funds to ensure that they are following church-state rules, but it must do so in ways that avoid excessive church-state entanglement. It also makes it clear that decisions about awards of federal financial assistance have to be free from even the appearance of political interference and that such decisions must be made on the basis of merit, not religious affiliation or lack thereof.

The third kind of change the 2010 order makes is that it mandates greater transparency and uniformity in this system. Grant and guidance documents must be posted on the web along with lists of nonprofits receiving federal social service funds. The 2010 order also creates the first interagency working group devoted to developing uniform rules on these and other issues. This group will propose a set of changes and additions to federal policies and practices that are necessary to fulfill the terms of the new executive order. In addition to the terms mentioned above, other tasks the interagency group has been given include developing instructions for peer reviewers and drafting policies regarding training for governmental employees and nonprofit providers on these rules. This is the first time these important issues have been mentioned in an executive order.

In almost every case, the Bush administration was pressed to make changes like these, but it refused to do so. At the same time, it's important to note that reforms set forth in the 2010 executive order have the backing of a group that includes some who supported the Bush initiative as well as some who opposed it. The president brought this diverse group together under the auspices of a newly created Advisory Council on Faith-Based and Neighborhood Partnerships, and the 2010 order is a direct response to many of the Council's recommendations.

Finally, a change that falls outside the context of executive orders is worth noting. The approaches of the Bush and Obama administrations appear to be significantly different in terms of the attention they have given to nonfinancial partnerships with religious and secular nonprofits, partnerships in which funds do not flow from the government to a nonprofit. According to Bush White House materials, "[t]he guiding principle" of its faith-based and community initiative was that "faith-based charities should be able to compete on an equal basis for public dollars to provide public services." The Obama White House has continued financial collaboration with religious and nonreligious groups to serve people in need, but it has also placed heavy emphasis on non-financial partnerships aimed at accomplishing the same end. These include collaborations in which the government equips religious and secular groups with information about ways citizens may access needed government benefits and situations in which faith-based and other community organizations round up volunteers for after-school mentoring at public schools.

Conclusions

Some points of continuity between the Bush and Obama policies make good sense. For example, while the government should never favor religiously affiliated groups in the competition for social service funds simply because of their faith ties, it should allow them to seek such funding along with secular groups. The government works with a wide range of nongovernmental organizations to achieve secular ends in the social service arena. If faith-based organizations wish to compete for government funding and are willing to abide by the relevant constitutional and other rules that apply, they should be welcome to seek funds available to other nongovernmental groups.

Federal social service funds are not gifts to the nonprofits that receive them; they are critical supports for people who are suffering, supports many nonprofits supplement with other services they subsidize themselves.

One county official who administers the homelessness program mentioned in the Politico story told me he was "amazed at the number of people who are displaced and homeless [or] nearly homeless [these days] who have never relied on any form of public or government assistance in their life." These people have lost their jobs, and they have been unable to get new ones. Counties don't care whether the nonprofits receiving these grants are religiously affiliated or not, the official said. They simply look for organizations with strong track records, the capacity to manage government grants, and the ability to keep people off the street.

At the same time, the Obama administration has wisely taken much-needed steps to create more clarity, transparency, and constitutional compliance in the rules governing these partnerships. Its new executive order is a major achievement, and the administration deserves great credit for asking a diverse group of experts to seek consensus in this area and for implementing many of this body's recommendations. Consensus measures are more durable and help to minimize time spent in litigation and to maximize the time and energy we spend serving people in need. These reforms demonstrate appropriate respect for the Constitution and for the hard-working social service providers that don't have time to learn an entirely new rulebook every four to eight years.

Also, the Obama administration's emphasis on non-financial as well as financial partnerships is a welcome point of departure from Bush administration policies. Nonfinancial partnerships present far fewer constitutional issues and risks for religious integrity. Indeed, many religious bodies that have no interest in financial collaboration are open to cooperating with government in nonfinancial ways. These alliances have the power to do as much good as financial partnerships.

Still, more reforms are needed regarding the rules governing financial partnerships, reforms aimed at protecting religious autonomy and equal opportunity in federally funded employment. Churches and other houses of worship are special kinds of religious institutions, and the government often does and should treat them specially. Houses of worship should be required to form separate corporations in order to receive direct federal social service funds as a way of insulating them from government regulation and lawsuits; protecting their unique legal status, including the special exemptions these core religious bodies enjoy; and maintaining an appropriate separation of church and state. Further, government officials certainly should be engaged with both religious and nonreligious nonprofits that wish to work with the state to improve their energy efficiency. When determining appropriate ways to do so, however, these officials must consult not only the text of federal statutes and regulations but also First Amendment precedent. And while religious organizations should have full freedom to make religious calls regarding jobs subsidized by tithes and offerings, taxpayers are right to expect to be able to compete for positions created by government grants without regard to their personal religious beliefs or lack thereof. Thus, the Obama administration should undo Bush policies that broke with a long and proud tradition of equal opportunity in federally funded jobs regardless of religion or creed.

In sum, at this point, the Obama administration's policies deserve a mixed verdict. Its continuation of certain Bush administration policies is troubling, but it has also retained some sensible policies and made key reforms that will benefit people in need and strengthen our cherished tradition of religious freedom.

Authors

Melissa Rogers

Publication: The Washington Post

Image Source: © Robert Galbraith / Reuters

Assessing Decision-making on the NYC Islamic Center: Continuing Our Tradition of Religious Liberty

Melissa Rogers — Wed, 04 Aug 2010 15:11:00 -0400

Introduction

The New York City Landmarks Preservation Commission announced yesterday that it will not designate the building at 45-51 Park Place in lower Manhattan as an historic landmark. The building, which is two blocks north of Ground Zero, does not have the architectural or historic significance to merit such a designation, the Commission unanimously said. While a decision like this normally would not draw national attention, this one already has because it essentially clears the way for the owners of the property to tear down the existing structure and build an Islamic center there.

This decision is one of several in which New York City officials have taken care to treat the planned Islamic center the same way they would treat plans for a YMCA or Jewish community center in this space. In so doing, these officials have honored core dictates of religious freedom.

Especially because other local leaders across the nation are facing related issues, it’s worth looking at the excellent example set by New York City’s officials. And with the battle for public opinion over the planned Islamic center still very much in play, an assessment of that debate also is in order.

The First Amendment and RLUIPA

The First Amendment to the United States Constitution bars the state from singling out certain religions for special disabilities. In 1993, for example, the United States Supreme Court said: “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs . . . .” This includes discrimination that “is masked as well as overt.”

Further, a federal law that specifically deals with religious institutions and land use regulation, the Religious Land Use and Institutionalized Persons Act (RLUIPA), plainly states: “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” Whether the entity is Muslim, Mormon, or Methodist, Congress recognized that faith-based discrimination by the government must not be tolerated.

Thus, if government officials were to reject or specially burden plans for mosques or other Islamic institutions because of their religious affiliation, it would violate both the Constitution and federal statutory law. This would be true whether the discrimination was plain to see or whether it lurked behind objections about things like traffic, aesthetics, and noise.

Of course, a commitment to treat all religions the same does not tie the government’s hands regarding specific and credible threats of violence. To cite a recent example, in March 2010 a federal grand jury indicted members of a Michigan militia group for plotting to attack police and use weapons of mass destruction. The group was known as “Hutaree,” and its members described themselves as Christian soldiers preparing to battle with the anti-Christ. That certainly did not stop law enforcement from taking action, and properly so.

New York City’s Example

At a tense hearing in May 2010, a New York City community board rejected a motion to delay a vote on the planned Islamic center and backed the project by 29-to-1, with 10 abstentions. New York City Police Commissioner Raymond Kelly said there were no security concerns about building the Islamic center in the area, and city officials quite rightly dismissed the notion that all things Islamic pose violent threats.

When some later suggested the city should take the land around Ground Zero by eminent domain in order to stop the Islamic center, Governor David Paterson’s office said such a move would be "an obvious violation of the First Amendment's religion clauses, a gross violation of the spirit and intent of the eminent domain provision in state law, and [it could] run afoul of other federal and state statutes and constitutional provisions." He was right. Others proposed launching a special investigation of the funding sources for this project, even though they admitted there was no evidence of wrongdoing. Attorney General Andrew Cuomo properly rejected it as a bad idea.

When the case came before the Landmarks Preservation Commission, many tried to distract the body with issues that were not part of its jurisdiction. The Commission kept its eye on the ball. Elisabeth de Bourbon, a spokeswoman for the body, called the controversy over the Islamic center an issue that was “totally separate" from the Commission’s work. "What we're looking at it is whether the building has the architectural and historic significance to the city of New York to merit landmark designation."

But the Manhattan figure most identified with these principled, consistent, and no-nonsense stands is New York City Mayor Michael Bloomberg. Whereas former Alaska governor Sarah Palin cited the pain of 9/11 victims and urged Muslims to oppose the project, the mayor noted that American Muslims were among those who were murdered on 9/11. They too are part of the community in lower Manhattan, he said, and they have a right to build there. When Newt Gingrich said “[t]here should be no mosque near Ground Zero in New York so long as there are no churches or synagogues in Saudi Arabia,” Mayor Bloomberg invoked our country’s founding. “If somebody wants to build a religious house of worship, they should do it and we shouldn’t be in the business of picking which religions can and which religions can’t,” he said. Bloomberg continued: “You know, the ability to practice your religion is the- was one of the real reasons America was founded. And for us to say no is just, I think, not appropriate is a nice way to phrase it.” Indeed, every time New York City officials were urged to place special burdens on this project precisely because it is affiliated with Islam, the mayor cried foul.

Bloomberg capped off these efforts with a stirring speech yesterday on Governors Island. The mayor said: “This nation was founded on the principle that the government must never choose between religions or favor one over another. “ He deemed battles like this one as “important [a] test of the separation of church and state as we may see in our lifetimes,” and said “it is critically important that we get it right.” Mayor Bloomberg has done so here.

An Affront or An Advance?

Now that the Landmarks Preservation Commission has spoken, opponents of the Islamic center are likely to focus largely on the claim that, while the owners of the property may have a legal right to move forward, the project is unnecessarily provocative and hurtful. Thus, they should pull the plug on their plans, opponents say.

If the sponsors of the Islamic center sympathized with the 9/11 hijackers, this argument would make sense. But they have said just the opposite. One of the leaders, Imam Feisal Abdul Rauf, has emphasized that project organizers “have condemned the actions of 9/11,” and “[w]e have condemned terrorism in the most unequivocal terms.” According to the Imam Feisal, the sponsors of the Islamic center want “to push back against the extremists,” and help “bridge and heal a divide” between Muslims and other faiths. The FBI has said Rauf assisted its agents in outreach to Muslims in the wake of September 11: “We’ve had positive interactions with him in the past,” a FBI spokesman noted. Daisy Khan, Imam Feisel’s wife, and a member of an advisory team for the National September 11 Memorial and Museum, has stressed their efforts “to de-link Islam from acts of terrorists.” Sharif el-Gamal, a lead developer of the project, and one who assisted first responders on 9/11, has promised that “[r]adical and hateful agendas will have no place” in this endeavor.

In the face of questions about fundraising for the Islamic center, Sharif el-Gamal has said, “We are in the process of establishing a not-for-profit entity, and we have not raised any money from foreign governments.” Moving forward, el-Gamal has promised “to make sure our fundraising and planning involves people from across the city” and to “do so in a way that hears concerns and responds to them.” He told CNN that project organizers “plan on being very transparent throughout the whole process.” El-Gamal has extended an open invitation to Americans, including former Alaska Governor Sarah Palin, to visit the community and learn more about the plans. He said: “You know, I'd love it if Sarah Palin came to Park51 to see our community. . .. We want to welcome everybody who cares about this city and about this country.”

Given these kinds of statements, it is unsurprising that a number of New York City religious leaders have spoken in favor of the project. Father Kevin Madigan of St. Peter's Church said: "I think they need to establish a place such as this for people of goodwill from mainline Christian, Jewish and Muslim faiths so we can come together to talk." Joy Levitt, executive director of the Jewish Community Center in Manhattan, told the New York Times: “For the J.C.C. to have partners in the Muslim community that share our vision of pluralism and tolerance would be great.” And a host of local religious leaders turned out yesterday to support plans for the Islamic center, including those from the Greek Orthodox Archdiocese, the Jewish Community Council, the Church of St. Francis of Assisi, the National Jewish Center for Learning and Leadership, Trinity Church, Church of the Nazarene, the Islamic Cultural Center of New York, the New York City Buddhist Church, the United Jewish Agency Federation, and the Interfaith Center of New York.

Having dedicated their project to this spirit, and having made these promises, I would urge Americans to welcome the organizers’ efforts. As noted above, opponents of the project say Islamic symbols and institutions create pain because they associate them with the 9/11 attacks. But many Muslims who condemn terrorism also claim those symbols and institutions -- they did before 9/11 and they do today. If Americans rebuff high-profile efforts by Muslims who condemn terrorism to reclaim their faith, we effectively give the 9/11 hijackers and their ilk a monopoly on the symbols and institutions of Islam. This would provide violent extremists with a powerful recruiting tool, and it would be deeply unfair to the vast majority of Muslims who practice their faith in peace.

Making Peace, Building Solidarity

As other cities and towns consider plans for mosques and other Islamic institutions in their communities, they should read a two-year study of American Muslims and terrorism done by Duke University scholar David Schanzer. Professor Schanzer and his colleagues found that “Muslim-American organizations and the vast majority of individuals who we interviewed firmly reject the radical extremist ideology that justifies the use of violence to achieve political ends.” They also discovered that “Muslim-Americans have taken a number of positive steps to reduce the potential for radicalization.” In addition to publicly and privately condemning terrorist incidents, they have warned congregants against propaganda, performed background checks on proposed speakers at mosques, pre-viewed texts to be offered at Friday prayer services, and barred certain speakers from their communities. They have sponsored anti-terrorism workshops and provided forums for youth to head off potential problems. Muslim Americans also have provided information to law enforcement about individuals who might engage in violence. Thus, thwarting the building of American Muslim communities would often mean thwarting some of our best weapons against terrorist threats.

Local officials who are facing related issues also should study New York City’s example. In the face of enormous pressure to do otherwise, city officials held fast to the principle that the government must apply the same standards to all faiths, a linchpin of the American tradition of religious liberty. Adherence to this principle has helped us to make peace and build solidarity in a nation where a stunning array of religions are practiced, often with great fervor, and frequently side-by-side. Contrary to Newt Gingrich’s suggestions, honoring this standard of religious freedom has not made us “weak” or “submissive.” It has made us strong.

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The Supreme Court and the Future of Religious Freedom

Melissa Rogers — Wed, 23 Jun 2010 12:22:00 -0400

Justices John Paul Stevens and Antonin Scalia do not see eye-to-eye on much, but they are in sync when it comes to interpreting the First Amendment’s Free Exercise Clause. As long as the government isn’t seeking to undermine religious practices, it does not matter how much the state burdens them. So, for example, if a public school imposes a “no hat” rule because it wants to prevent students from wearing baseball caps and reads that rule to bar the wearing of yarmulkes as well, there’s no free exercise problem -- the school wasn’t targeting religious practices. This is the basic teaching of the Supreme Court’s 1990 watershed opinion in Employment Division v. Smith, which Justice Scalia authored and four other justices, including Justice Stevens, joined.

In the document dumps from the presidential library of Bill Clinton, there’s some suggestion that Elena Kagan thinks about these issues differently. If Kagan is elevated to the Supreme Court, and she does part ways with Justices Scalia and Stevens on these matters, it could mark the first time a critic of the 1990 Smith decision and its weak reading of the Free Exercise Clause replaces a supporter of that decision. This would move the Court closer to reinvigorating the Free Exercise Clause, and thus closer to providing additional protection for the peaceful practice of all faiths.

The Fall of Free Exercise: Employment Division v. Smith

The First Amendment’s Establishment and Free Exercise Clauses set forth special rules the government must follow when it interacts with religion. Nevertheless, in the 1990 Smith decision, the Supreme Court basically reduced the Free Exercise Clause to a constitutional redundancy. It essentially held that this clause simply bars the government from intentionally or overtly discriminating against religious practices, something other constitutional provisions already guarantee.

The Smith decision broke with traditional doctrine that provided a much higher level of protection for religious exercise. It also involved the Court in deciding far more than was necessary to resolve the case. Thus, the decision was immediately greeted with widespread calls for rehearing and reversal, calls the Court rejected.

This prompted a broad coalition of religious and civil liberties groups to work for passage of the Religious Freedom Restoration Act (RFRA), a measure that sought to reinstate traditional free exercise protections through a federal statute. In 1993, Congress passed RFRA with nearly unanimous support, and President Bill Clinton signed it into law.

Under RFRA, the claimant must first show that the government has substantially burdened his or her sincere religious practice. If the claimant is able to do so, then the state must justify the burden with a narrowly tailored compelling state interest. If the government makes such a showing, it wins the case and the substantial burden is deemed to be the unavoidable consequence of a balancing of competing interests. If the government cannot do so, it loses and must lift the burden on religious exercise.

Another Smith Case: Smith v. Fair Employment and Housing Commission

In August 1996, a RFRA case came to Elena Kagan’s attention in her capacity as associate counsel at the Clinton White House. She received a call from Steve McFarland, then with the Christian Legal Society, informing her that the Solicitor General’s office had decided against filing a petition with the United States Supreme Court asking it to hear a case involving a widow, Evelyn Smith, who owned and leased four rental units in Chico, California. Smith had refused to rent to an unmarried couple due to her religious belief that sex outside of marriage is sinful, and that if she rented an apartment to the cohabitating couple, she would be contributing to that sin. This rejection prompted both members of the unmarried couple to file complaints with the California Fair Employment and Housing Commission (FEHC), arguing that Mrs. Smith had violated a state law prohibiting landlords from discriminating on the basis of marital status.

The FEHC found that Smith had violated this statute, but a state appellate court reversed the FEHC’s judgment, prompting the couple to seek review of the case before the California Supreme Court. In a closely divided decision, the top California court reversed the lower court, with a court plurality finding Mrs. Smith had not proven that the state had substantially burdened her religious beliefs and practices. “Smith’s religion d[id] not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital,” it said. Thus, she could avoid the problem by selling the property and finding another way of making money. Mrs. Smith’s refusal to rent to the couple limited their rights, and that also undermined Smith’s claim that her religious practices were substantially burdened, according to the court plurality. Because it found no substantial burden on religious exercise, there was not any need to consider whether the state had a compelling interest for interfering with that practice. Mrs. Smith had no claim under RFRA.

Kagan’s Counsel on Smith v. FEHC

In a memo to her White House bosses, Kagan called this analysis “quite outrageous.” It was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Kagan said.

She referenced a friend-of-the-court brief that was to be filed with the U.S. Supreme Court, a brief written by Marc Stern of the American Jewish Congress on behalf of a diverse coalition of religious groups. It is important to note that neither Kagan nor this coalition took a position on whether the government had a narrowly tailored compelling interest that would justify the burden on Mrs. Smith’s faith (and thus whether her claim should ultimately prevail under RFRA). That issue was not presented at this stage of the litigation. In their brief, the religious groups said it was important to consider whether the practice of Mrs. Smith’s religion would harm the rights of the unmarried couple. But that matter was properly weighed in the evaluation of whether the state was pursing a compelling interest by the least restrictive means, not in the evaluation of whether there was a substantial burden on free exercise. The religious groups argued that the California Supreme Court had read the substantial burden requirement in a cramped and confused way, one that was “inconsistent with the language, intent and legislative history” of RFRA. They urged the Supreme Court to hear the case because they believed the decision had great potential to undermine the new law.

Kagan concurred: “Taken seriously, this kind of reasoning could strip RFRA of any real meaning.” She said she wanted to follow up with the Solicitor General’s office on the matter. “[G]iven the importance of this issue to the President and the danger this decision poses to RFRA’s guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the Court to review and reverse the decision.” A handwritten note on the memo from then-White House Counsel Jack Quinn indicates that he was sympathetic to Kagan’s argument: “[L]et’s consider filing on the merits,” he said.

Parsing Kagan’s Counsel

Kagan was advancing President Clinton’s agenda here, not necessarily her own. Further, she was talking about how a federal statute, RFRA, should be interpreted, not the First Amendment’s Free Exercise Clause.

Still, Kagan’s writings may say something important about how she would interpret the Free Exercise Clause. Kagan apparently found substantial burdens on religious exercise troubling, and it is not clear that this was simply because such burdens matter under RFRA. These burdens also matter under traditional Free Exercise Clause analysis, but not under the 1990 Employment Division v. Smith decision. This may suggest that, in an appropriate case, Kagan would favor revisiting and revising the Smith decision.

Further, when the U.S. Supreme Court later struck down RFRA in part, Kagan called herself “the biggest fan... in this building" of a successor statute to RFRA. It’s not impossible, but it is unlikely, that a person would be an avid supporter of these measures and a supporter of the Supreme Court’s decision in Smith.

Kagan’s memo also points toward a deep understanding of some of the fundamentals of religious freedom, an understanding that could apply equally to First Amendment interpretation and to free exercise cases with fact patterns that are quite different from the California Smith case. Kagan recognized that requiring a person to find another income-producing activity to support herself is unquestionably a substantial burden, and requiring a person to do so because of the nature of her sincere religious beliefs and practices substantially burdens the free exercise of her faith. Whether there is a compelling interest to justify that burden is the essential next step in the religious freedom analysis, but Kagan saw that the two steps should not be conflated. She also seemed to recognize that courts provide inadequate protection for the fundamental right of free exercise when they hold that religious practices are not substantially burdened unless claimants have no conceivable ways of avoiding those burdens.

Additionally, Kagan understood that religious freedom does not consist of evaluating the correct-ness of religious beliefs but rather in affording all sincere religious practices the same degree of protection. It seems doubtful that Elena Kagan shares Mrs. Smith’s religious beliefs on this matter; she might even think those beliefs are wrong. But that did not stop her from seeking to take Smith’s beliefs and practices seriously. It also did not prevent Kagan from trying to step into Mrs. Smith’s shoes to imagine how severely the governmental nondiscrimination requirement burdened her faith.

Even those who raise an eyebrow when the term “empathy” is associated with judging often recognize that it is essential for judges to be able to think in this way. This ability is particularly important when minority faith practices are at issue. In part because legislative bodies and executives usually are focused on the majority’s will, they tend not to have great records of protecting minority faith practices. It frequently falls to courts, therefore, to ensure that peaceful religious practices that are relatively obscure or unpopular are afforded as much protection as more familiar or accepted ones.

Kagan, the Court, and the Future of Free Exercise

The Kagan nomination has not drawn much attention thus far, in part because it is assumed that she will vote in largely in the same way Justice Stevens has. But this may be one of those cases in which the substitution of Kagan for Stevens could result in a qualitatively different vote. If this flip does occur, it would move the Court closer to a substantive change in the interpretation of a fundamental constitutional right. In other words, after two decades in which there has essentially been a free-exercise stand-still at the Court, the Kagan nomination could get things moving again.

It might be too much to say that President Obama had these kinds of hopes in mind when he nominated Kagan to the nation’s highest bench. And it is certainly true that the Obama administration has great respect for Justice Stevens and hopes Kagan will build on his record in many ways. But given President Obama’s religious freedom commitments, this is one area where he would be likely to see a break with Stevens as a welcome change.

Melissa Rogers previously served as general counsel to the Baptist Joint Committee on Religious Liberty, a supporter of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act and an amicus in the Smith v. Fair Employment and Housing Commission case.

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Faith-Based & Neighborhood Partnerships in the Obama Era: Assessing the First Year and Looking Ahead

Thu, 18 Feb 2010 08:30:00 -0500

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February 18, 2010
8:30 AM - 2:00 PM EST

Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

Last February, President Obama established the White House Office of Faith-based and Neighborhood Partnerships and created a presidential advisory council of leading religious and secular scholars and figures to recommend changes in how these partnerships are carried out. While public attention has been focused on the economic downturn, the health care debate and two wars, the White House office has continued to foster government partnerships with religious and secular community organizations around the country. A year into the Obama administration, what is the state of the debate over these partnerships? What has changed since the Bush administration?

On February 18, the Brookings Institution hosted a forum on partnerships between government and faith-based and neighborhood groups during President Obama’s first year in office. The event focused on understanding what has been accomplished thus far. Discussion also centered on what will and should happen in this area over the rest of the president’s term.

Panelists included some of the country’s leading scholars and religious figures focused on examining partnerships with faith-based groups and other nonprofits. Joshua DuBois, director of the White House Office of Faith-based and Neighborhood Partnerships, delivered an opening address on his office’s first year and plans for the future. The forum concluded with remarks by Rabbi David Saperstein, director and counsel of the Religious Action Center for Reform Judaism, and Father Larry Snyder, president of Catholic Charities USA.

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Faith-Based & Neighborhood Partnerships in the Obama Era

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20100218_faith_based

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Moderator: E.J. Dionne, Jr.

Senior Fellow, Governance Studies

Moderator: Melissa Rogers

Nonresident Senior Fellow, Governance Studies
Director, Center for Religion and Public Affairs, Wake Forest University

Joshua Dubois

Director, The White House Office of Faith-based and Neighborhood Partnerships

Mark Chaves

Professor of Sociology, Religion, and Divinity, Duke University

Renata Cobbs Fletcher

Vice President for Public Policy and Community Partnerships, Public/Private Ventures

Stephen Monsma

Senior Research Fellow
Henry Institute for the Study of Christianity

Rebecca Sager

Visiting Fellow, Center for the Study of Religion, Princeton University

Noel Castellanos

CEO, Christian Community Development Association

Dan Mach

Director of Litigation, ACLU's Program on Freedom of Religion and Belief

Steve McFarland

Vice President and Chief Legal Officer, World Vision
Former Director of the Department of Justice's Task Force for Community and Faith-Based Initiatives

Bob Tuttle

Professor, George Washington University Law School

Rabbi David Saperstein

Director and Counsel, Religious Action Center of Reform Judaism

Rev. Larry Snyder

President, Catholic Charities USA

Religious Expression in American Public Life

Tue, 12 Jan 2010 10:00:00 -0500

Event Information

January 12, 2010
10:00 AM - 12:00 PM EST

Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

Religion’s place in American public life continues to spark intense political debate. Much of this divide centers on current laws addressing religious liberty, including applications of the religion clauses of the First Amendment.

On January 12, a diverse working group of religious and secular leaders unveiled a joint statement about current laws regarding religious expression in the United States. This document does not focus on what the law should be, but rather what the law is today. The joint statement seeks to provide accessible and useful information for Americans about this area of law, and enrich the conversation surrounding religious liberties.

Signatories discussed current legal protections of religious expressions, including issues such as religion and politics; religious gatherings on government property; chaplains in legislative bodies, prisons and the military; and religion in the workplace. They also discussed the history and future of common-ground projects in the religious freedom field.

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Religious Expression in American Public Life

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Moderator

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Dr. Charles C. Haynes

Senior Scholar
The Freedom Forum First Amendment Center

Colby May

Director & Senior Counsel, Washington Office
American Center for Law and Justice

Marc Stern

Acting Co-Executive Director
American Jewish Congress

God in Government: Judge Sotomayor's Church-State Record

Melissa Rogers — Tue, 07 Jul 2009 13:37:00 -0400

If the Senate confirms the nomination of Judge Sonia Sotomayor to the nation’s highest court, there will be six Catholics on the Supreme Court. So far this is the most reported religion-related issue in this nomination process. It’s also one of the least enlightening: Justice Antonin Scalia is Catholic; so was Justice William Brennan. A better source of insight into Sotomayor’s views is her judicial record, including her record on cases touching on the Free Exercise and Establishment Clauses of the First Amendment.[i]

Judge Sotomayor’s style is methodical and her church-state rulings are decidedly mainstream. Generally speaking, she is sensitive to the rights of religious people and groups to express their faith without unnecessary governmental interference, and she is protective of the prerogative of religious institutions to hire and fire their ministers free from state meddling. Sotomayor has not often had to face issues related to government sponsorship of religious messages, and she apparently has never decided cases involving government subsidies and religious institutions and activities. In part for that reason, Senators should engage Sotomayor in a discussion of the broad principles and values animating the constitutional commands on religious freedom.

Judge Sotomayor’s Church-State Record

Whatever the proper place of empathy in judging generally, a sort of empathy clearly has a role in free exercise jurisprudence, and Judge Sotomayor has practiced it. In order to be recognized as religious beliefs and practices deserving protection under the First Amendment, those beliefs and practices need not be shared by all or most members of a religious community, nor must they be familiar or even comprehensible to state officials.[ii] What is important is a particular litigant’s understanding of his or her faith.

A good illustration of Sotomayor’s adherence to this principle is found in a case involving a prison’s denial of the Eid ul Fitr feast to a Muslim inmate. [iii] This feast is “one of two major religious observances in Islam.”[iv] The prison delayed serving this feast and then denied it to the inmate, who then sued the prison. Religious authorities called by the government said the delay in serving the Eid ul Fitr meal drained it of any religious significance, and thus the inmate had no free exercise claim. Relying on this testimony, the lower court dismissed the lawsuit. The Second Circuit vacated this ruling and remanded the case, with Sotomayor writing for the court. She noted that, unlike the religious leaders, the Muslim prisoner sincerely believed the meal had great religious significance even when served more than a week late. It was the inmate’s beliefs that mattered, Sotomayor said. [v] Likewise, when Sotomayor confronted a case in which inmates sued prison officials for refusing to let them wear Santeria beads, and the government claimed this devotional practice was merely “optional,” Sotomayor did not simply take the officials’ word for it.[vi] The prisoners believed their failure to wear the beads would “result in negative, and possibly irreversible life consequences for the practitioner,” Sotomayor emphasized.[vii]

Her free exercise record also reveals that Sotomayor has been vigilant about detecting preferences for some faiths over others in government policies and practices. For example, she found fault with a prison rule that created, in her words, “a hierarchy of religious artifacts,” treating the items of some faiths more favorably than others.[viii] When there was no legitimate secular justification for these distinctions, it smacked of religious bias, something that deeply offends the Constitution.[ix]

Judge Sotomayor has not underestimated the challenge correctional officials face in dealing with these issues. She has pointed to “the complex nature and difficulty of accommodating various religious belief systems and tenets within a prison system, wherein violence is a real and daily threat.”[x] At the same time, she has pressed the government for credible evidence of a real need to burden faith in this and other contexts.

In the Santeria bead case, for example, she accepted corrections officials’ assertion that beads could be used as gang identification. But she also noted that prison administrators had not shown how that would be possible if inmates wore the beads under their clothing.[xi] Further, prison authorities had not produced any evidence that Santeria beads had ever been used by prison gangs, Sotomayor said.[xii] Prison security and safety are clearly compelling interests, she recognized, but correctional officials “cannot merely brandish” those words and expect to win their cases. [xiii] The fundamental right of free exercise should not be denied simply due to “speculative difficulty” or “administrative inconveniences.”[xiv]

In 2002 Sotomayor joined another opinion forcing the government to do more than give lip service to the free exercise of religion. The Second Circuit barred the City of New York from forcing homeless people to vacate a church’s property, where they had been invited to sleep.[xv] The church created the outdoor space “as a sanctuary for the service-resistant homeless who prefer not to sleep in shelters,”[xvi] and it sued the city when it attempted to stop the program. Sotomayor and her fellow judges rejected the city’s argument that this program did not qualify as an exercise of faith. The judges also saw through the city’s alternative argument that it had a compelling interest for disrupting this program because the homeless needed to be encouraged to access “a safer, more civilized alternative,” i.e., a shelter.[xvii] The point of the program, the court emphasized, was to minister to people who refused to go to shelters. The city’s attempt to restrict this religious practice was not justified by a compelling state interest, and thus violated the First Amendment’s Free Exercise Clause.

Judge Sotomayor also has been solicitous of First Amendment doctrine protecting religious institutions’ rights to hire and fire ministers without government interference, often known as the “ministerial exception.” When a Methodist minister claimed his forced retirement by a church body violated a federal age discrimination statute, Sotomayor said the federal statute did not apply in his case.[xviii] Congress recognized it would violate the First Amendment for a court to intervene in a job dispute between a religious body and a member of its clergy. Thus, it did not intend for the discrimination statute to cover such cases. “[C]ourts may not adjudicate employment discrimination lawsuits brought by clergy members challenging a religious body’s refusal to select or retain them as spiritual leaders,” Sotomayor said.[xix]

Sotomayor’s opinion in this case was a dissent.[xx] In addition to other disagreements with the court majority, she noted that this “ministerial exception” had not been displaced simply because other religious freedom legislation had been passed that might provide some overlapping coverage. Given the fact that Congress designed the legislation to enhance protection for religious exercise, she said, “it makes little sense to read th[at] statute as eliminating” other free exercise protections.[xxi]

In her seventeen years on the bench, Sotomayor has encountered few cases that required her to decide whether the government had promoted religion in violation of the First Amendment’s Establishment Clause, whether by advancing or sponsoring religious messages. As a trial court judge, she rejected an Establishment Clause defense asserted by the city of White Plains, New York, when it denied an Orthodox Jewish rabbi permission to display a menorah in one of two city-owned parks during Hanukah.[xxii] The parks had been the site of numerous festivals and events, some with temporary fixed structures, and the parks typically featured a “holiday tree” during the Christmas season. After the rabbi made his request, the city enacted a policy prohibiting fixed displays of religious or political symbols in the parks. Sotomayor first noted that “[r]eligious and political speech enjoy the full protection” of constitutional free speech guarantees, and that governmental restrictions on the content of speech must be justified by a compelling state interest.[xxiii] She found no compelling interest here, because this religious display did not violate the Establishment Clause. “Isolated religious displays on some public properties may indeed send a message of government endorsement of religion,“ she said, thus she was “sympathetic to the City’s concerns.”[xxiv] But expressive activities in public parks are and should be viewed as nongovernmental speech, except where the government made some effort to sponsor the speech or where the public park is “so intimately associated with the seat of government that it is viewed as a mere extension of the government.”[xxv] Neither factor was present here, according to the judge.

Also while serving as a trial court judge, Sotomayor rejected a lawsuit designed to force the United States Postal Service to display the Muslim Crescent and Star in its offices in conjunction with other holiday decorations, or remove Christmas trees and menorahs from its seasonal displays.[xxvi] At least some of the USPS’s holiday displays that incorporated Christmas trees and menorahs would pass muster under Supreme Court’s precedent, Sotomayor found, so the challenge to the policy as a whole must fail.

In 2002 Sotomayor and her colleagues on the Second Circuit turned away a substitute teacher’s appeal regarding religion in the classroom, in part for Establishment Clause reasons.[xxvii] The teacher claimed a school violated her First Amendment rights when it terminated her after she evangelized her sixth-grade students in the wake of an announcement that a fellow student had died. The appellate court panel that included Sotomayor noted that the school’s “ ’strong, perhaps compelling interest in avoiding Establishment Clause violations’ justified its actions. . . .”[xxviii] Given the fact that the substitute teacher had told her captive audience of young students things like “one must come through Jesus to get to God,” this is hardly a surprising result.[xxix]

In her opinions in this area, Judge Sotomayor makes little or no attempt to describe her overarching constitutional philosophy. Instead, she seeks to follow precedent and explains her reasoning in plain language. On free exercise and free speech matters, Sotomayor often demonstrates keen insight, good instincts, and a healthy independent streak. It is more difficult to describe her approach to Establishment Clause issues, given her thin record in that area.

How Might Sotomayor Change the Court?

Sonia Sotomayor will change the Supreme Court, if only because each new justice creates “a different court,” as Justice Byron White said.[xxx] It is impossible to say what those changes will be, and one does not fare much better when trying to make predictions about how a nominee will rule in particular Supreme Court cases. As a lower court judge, Sotomayor has been bound by Supreme Court precedent, and that means she has often had little room to express her own views about constitutional issues. If she takes a seat on the highest bench in the land, she still must respect earlier Supreme Court rulings, but she may also call for overruling those decisions when she believes it appropriate to do so. Other wild cards include the fact that cases have a way of presenting questions we could not have predicted, and answering those questions can scramble the usual alliances on the Court. Surprising clashes or bonds among the personalities on the Court also sometimes affect voting blocks.

Having said that, it is still worthwhile to attempt to make some comparison of Judge Sotomayor’s views and voice on these issues with those of Justice Souter. This comparison helps us understand what kind of change might be brought about by this transition.

A Justice Sotomayor’s votes in Free Exercise cases would be likely to be similar to those of Justice Souter. Both appear to care deeply about the right to be free from governmental interference with faith, and both seem to keep their eyes open for instances in which the government exhibits bias toward particular religions. At least as a lower court judge, Sotomayor has not shown the same interest Souter has in church-state history, including the original understanding of the Free Exercise Clause.[xxxi] And, with Souter’s retirement, the call for revisiting the Court’s well-known 1990 decision of Employment Division v. Smith may pass from the scene.[xxxii] But there’s a good chance we will find no difference in the kind of result these judges support in free exercise cases.

Sotomayor’s thin record on Establishment Clause issues make it more difficult to guess how she would approach and decide these issues on the Supreme Court. One possible contrast between Sotomayor and Souter in this area is that Sotomayor may gravitate toward brighter lines. A comparison of two opinions written by these judges in similar cases sheds some light on this possibility. Both judges reached essentially the same result, but their opinions reflect somewhat different sensibilities.

In 1995 Justice Souter wrote a concurring opinion in a case involving the temporary unattended display of a nongovernmental group’s cross in a public park. [xxxiii] Souter agreed that the state of Ohio could not ban this particular display, in part because it had allowed other temporary displays sponsored by nongovernmental groups in the park. At the same time, Souter emphasized that the Court must take pains to ensure that even religious speech by a nongovernmental speaker would not appear to a reasonable observer to be endorsed by the government.[xxxiv] The Court should not limit itself to looking for intentional endorsements or manipulations of the forum, Souter said. Instead, it should also consider factors like whether religious symbols dominate the forum.[xxxv] Further, Souter drew a distinction between cases involving unattended displays and remarks by citizens on government property. He said: “When an individual speaks in a public forum, it is reasonable for an observer to attribute the speech, first and foremost, to the speaker, while an unattended display (and any message it conveys) can naturally be viewed as belonging to the owner of the land on which it stands.”[xxxvi]

Like Souter, Judge Sotomayor has noted that “it is conceivable that private fixed religious displays in [public] parks could convey a mistaken impression of government sponsorship.”[xxxvii] But when she confronted an application by an individual to display a menorah temporarily in a public park, her approach differed from Souter’s in some significant ways. Where he saw possible storms on the horizon, she saw almost nothing but sunny sky. Sotomayor brushed aside attempts to distinguish cases involving oral expression on government property by religious speakers from those involving unattended religious displays.[xxxviii] Reasonable observers understand speech in public parks to be that of citizens, whether it is a spoken message or a menorah, she said. In public parks, Sotomayor wrote, “the absence of governmental sponsorship of private religious displays is strikingly clear.”[xxxix] Thus, “the existence or non-existence of accompanying secular symbols [in the park] should be of little import to the reasonable observer viewing religious displays in these quintessential public forums.”[xl] What seemed plain to Sotomayor did not seem nearly so clear to Souter.

Justice Souter was at least as exacting in his review of cases involving government funds and religious activities or institutions, while Judge Sotomayor apparently has not confronted these kinds of cases. Souter not only doggedly insisted that no government funding subsidize religious messages and activities, he also methodically charted his colleagues’ movement away from this interpretation of the Establishment Clause and flagged some of the new and sticky issues their posture would create, such as fights over the regulation following government funds to religious institutions. With more types of government funding flowing to more kinds of religious institutions and activities these days, these issues are sure to gain increasing prominence.

Questions for Sotomayor

In part because Judge Sotomayor’s record on Establishment Clause issues is quite limited, Senators should ask about her judicial philosophy on church-state issues. They should ask questions such as: What roles do the Free Exercise and Establishment Clauses play in the protection of religious freedom? Does the Establishment Clause prohibit only state coercion of citizens along religious lines, or something more? Does it prohibit the government from directly subsidizing and sponsoring religious messages and activities? If so, why? Should the government attempt to be neutral toward religion? What does neutrality mean? What role should history or original meaning play in the interpretation of the First Amendment’s religion clauses and other constitutional provisions, and what do we know and not know about such history as it relates to the Establishment and Free Exercise Clauses? Also, Sotomayor’s recognition that various members of the Court have criticized certain Establishment Clause tests provides an opportunity to ask about her thoughts on the status and merits of those tests. [xli]

Nominees must refrain from pre-judging cases, but answering these questions would not require the judge to cross that line. And while judicial nominees often attempt to engage questions without fully answering them, we still would likely learn something useful from Sotomayor’s reactions. In any case, in a nation where we often refer to religious liberty as our “first freedom,” no confirmation process would be complete without a discussion of this cherished human right.

_[i]_{This essay is not an exhaustive description of Judge Sotomayor’s record in this area, but it does attempt to describe some of the more important aspects of that record.}_[ii]_{Thomas v. Review Board, 450 U.S. 707, 714 (1981)(“religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit}_{First Amendment}_{protection.”)}_[iii]_{Ford v. McGinnis, 352 F.3d 582, 584 (2d Cir. 2003).}_[iv]_{Id. at 584.}_[v]_{The Second Circuit remanded the case, directing the lower court to determine whether the denial of that meal was reasonably related to a legitimate penological interest.}_[vi]_{Campos v. Coughlin, 854 F. Supp. 194, 210 (S.D.N.Y. 1994). In this case, Judge Sotomayor directed prison officials to allow the inmates to wear the Santeria beads under their clothing while the inmates’ lawsuit was pending.}_[vii]_{Id. “Whether plaintiffs represent a minority of Santeria practitioners is of no concern for this Court may not discern the propriety of religious practices, but merely the sincerity of plaintiffs’ religious beliefs.” Id. at n.13.}_{Judge Sotomayor also has carefully examined assertions made by the government to cast doubt on the sincerity of free exercise claims. In the Campos case, for example, she corrected prison officials when they argued that inmates’ declarations of their faiths as “Christian” and “Catholic” meant that they were not sincere about their claims to be practitioners of the Santeria religion. Citing expert testimony, Sotomayor said: “There is nothing in the record to suggest that plaintiffs, although devout Santeria practitioners, do not also acknowledge certain aspects of Catholicism and Christianity, as do other practitioners of Santeria.” Id. at 201.}_[viii]_{Campos, 854 F. Supp. at 198-199.}_[ix]_{Id. at 214.}_[x]_{Id. at 197.}_[xi]_{Id. at 207-208.}_[xii]_{Id. at 209 & n.12.}_[xiii]_{Id. at 207.}_[xiv]_{Id. at 208.}_[xv]_{Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570 (2d Cir. 2002). In this case, the Second Circuit upheld the lower court’s grant of a preliminary injunction to the church. The injunction prohibited the city from interfering with homeless people who slept on church property.}_[xvi]_{Id. at 572.}_[xvii]_{Id. at 576.}_[xviii]_{Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006)(Sotomayor, J., dissenting).}_[xix]_{Id. at 118. This was true even though the statute would apply to religious institutions in other cases. Id. at n.12.}_[xx]_{In Hankins v. Lyght, a majority of the Second Circuit vacated the lower court’s dismissal of the case. The court below had found that the ministerial exception blocked the minister’s lawsuit. The Second Circuit, however, said the Religious Freedom Restoration Act (RFRA) was most “on point” and should be read as the “full expression of Congress’s intent with regard to the religion-related issues” before the court. Id. at 102. The appellate court remanded the case for determination of whether application of the ADEA violated RFRA in this case.}_{In her dissent, Judge Sotomayor argued that the church had waived the RFRA issue and that RFRA did not apply to disputes between private parties. Id. at 110-116. She also accused the court majority of violating a cardinal principle of judicial restraint by unnecessarily reaching the issue of RFRA’s constitutionality. Id. at 110-111. She characterized the remand of the case as “wasteful” and “unnecessary,” saying the lower court was not in any better position to decide the statutory or constitutional issues at stake. Id. at 118-119.}_[xxi]_{Id. at 118.}_[xxii]_{Flamer v. City of White Plains, 841 F. Supp. 1365 (1993).}_[xxiii]_{Id. at 1372 & 1375.}_[xxiv]_{Id. at 1376.}_[xxv]_{Id. at 1380 & 1381.}_[xxvi]_{Mehdi v. United States Postal Service, 988 F. Supp. 721 (S.D.N.Y. 1997).}_[xxvii]_{Rosario v. Does, 36 Fed. Appx. 25 (2d Cir. 2002).}_[xxviii]_{Id. at 27.}_[xxix]_{Id. at 26.}_[xxx]_{Linda Greenhouse, Every Justice Creates a New Court, The New York Times (May 27, 2009) http://www.nytimes.com/2009/05/27/opinion/27greenhouse.html}_[xxxi]_{As his friend John McCausland, the vicar of Holy Cross Episcopal Church in Souter's hometown of Weare, N.H. explained, Souter likes “old things.” David G. Savage, Justice Souter: Liberal or Conservative?, Los Angeles Times (May 4, 2009) at}_{http://articles.latimes.com/2009/may/04/nation/na-souter4?pg=2}_{(John McCausland said: "He likes old things: furniture, the old Episcopal prayer book, old friends like me.”)}_[xxxii]_{See Melissa Rogers, Justice Souter and the Court’s Church-State Balance (May 19, 2009) at}_{http://www.brookings.edu/opinions/2009/0519_court_balance_rogers.aspx}_{. Of course, some scholars and religious and civil liberties groups will continue to call for Smith’s reversal, even if those calls are rebuffed by the Court.}_[xxxiii]_{Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)(Souter, J., concurring in part and concurring in the judgment).}_[xxxiv]_{Id. at 785-795.}_[xxxv]_{Id. at 791-92.}_[xxxvi]_{Id. at 786.}_[xxxvii]_{Flamer, 841 F. Supp. at 1381.}_[xxxviii]_{Id. at 1379.}_[xxxix]_{Id. at 1380.}_[xl]_{Id. at 1380.}_[xli]_{Flamer, 841 F. Supp. at n.11 (“the Lemon [v. Kurtzman] test has come under fire by some members of the [Supreme] Court in recent years”) and Mehdi v. United States Postal Service, 988 F. Supp. at 729 (S.D.N.Y. 1997)(status of “endorsement test” might be “tenuous” at the “Supreme Court level.”)}

Authors

Melissa Rogers

Justice Souter and the Supreme Court’s Church-State Balance

Melissa Rogers — Tue, 19 May 2009 12:00:00 -0400

President Obama has encouraged a “serious debate about how to reconcile faith with our modern, pluralistic democracy.”(1) He has called for an appreciation of “the critical role that the separation of church and state has played in preserving not only our democracy, but the robustness of our religious practice,” while also saying “a sense of proportion [should] guide those who police the boundaries between church and state.” What kind of Supreme Court nominee will this president choose? We’ll find out soon.

As we await a White House announcement, a consideration of Justice David Souter’s religious liberty legacy is in order. Justice Souter has had a strong voice and an interesting combination of views on these matters. A brief review of some of Souter’s opinions helps to lay a foundation for understanding how President Obama’s pick to replace him might affect the church-state balance at the Court.

Justice Souter has consistently challenged narrow interpretations of both the Free Exercise and Establishment Clauses of the First Amendment. In 1993 he joined his colleagues in striking down a Florida ordinance that was a thinly disguised attempt to stop animal sacrifice by followers of the Santeria faith.(2) This violated even the minimal free exercise protections remaining in the wake of the Court’s 1990 decision, Employment Division v. Smith.(3) The Court was unanimous on this point, but Souter also wrote separately to call for a reexamination of the controversial Smith decision, which was written by Justice Antonin Scalia. Souter noted that the government could seriously burden religious practicies even when it did so inadvertently rather than intentionally. The Smith decision, Souter said, was in considerable tension with longstanding precedent that was much more protective of free exercise. The Court has yet to heed Justice Souter’s call.

On the other side of the constitutional coin, Souter played a significant role in ensuring that the Court maintained its robust interpretation of the Establishment Clause. The Court has long held that the Establishment Clause not only prohibits the government from favoring one faith over another but also from favoring religion over nonreligion. It has barred state sponsorship or endorsement of religious messages, not simply state coercion in religious matters. When some his colleagues attempted to argue that the original understanding of the First Amendment required a less expansive interpretation of the Establishment Clause, Souter countered that history provided no warrant for this departure and much justification for these rules.

An application of these principles led Justice Souter to join Court decisions prohibiting public schools from organizing prayers at graduation ceremonies(4)and football games.(5) He wrote an opinion banning the government from posting the Ten Commandments when it was plain that its predominant purpose was to advance religion.(6) Souter was not only concerned about protecting the consciences of nonbelievers and members of minority faiths; he also believed government support for the favored faith would undermine its integrity.

Souter faced another set of cases involving requests by religious groups to have the same access to state property that other nongovernmental groups enjoyed. He supported this “equal access” right in some situations,(7)but he struggled with it in others. He dissented, for example, when the Court held that a public school must provide equal access to its property for a Bible study group for young children that met soon after school closed for the day.(8)

In cases involving state aid and religious institutions and activities, Justice Souter argued that governmental neutrality toward faith meant much more than merely ensuring that the state is evenhanded when it distributes funds to religious and nonreligious organizations.(9) He often quoted James Madison, who warned that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one [religious] establishment, may force him to conform to any other establishment in all cases whatsoever.” Souter increasingly found himself on the losing side of these debates.

Another significant aspect of Souter’s religious liberty legacy is his concern about the practical result of Court action, or inaction, in this arena. When religious matters are left to the political branches of government, Souter noted, minority faiths often fare poorly.(10) Permitting a city to embrace a Ten Commandments monument and turn away a monument featuring scripture from another religious tradition would raise concerns about a governmental preference for one faith over another, even if the Court could find some doctrinal way to bless the city’s action.(11)

It seems unlikely that the addition of President Obama’s nominee to the Court will change the outcome in church-state cases, even if she or he differs from Justice Souter somewhat. But the views and voice of his nominee will certainly affect the debate at the Court and shape decisions long after Obama leaves the White House. For a president who gives thoughtful attention to the dictates of both religion clauses, Souter’s record provides much to appreciate and consider.

Authors

Melissa Rogers