Law Professors Urge Connecticut Legislature to Respect Religious Freedom

Legal scholars Tom Berg, Carl Esbeck, Rick Garnett, and Robin Fretwell Wilson recently urged the Connecticut legislature to protect religious freedom in the course of codifying the state supreme court's same-sex marriage decision. See their letter here.

Dale Carpenter reacted to their letter, and their response is here.

NY Times Article on Religious Staffing Freedom and Government Funds

The New York Times has published an article regarding the Department of Justice's opinion about religious staffing freedom and government funds.

Former Center Director and University of Missouri law professor Carl Esbeck is quoted in the article, defending the DOJ opinion.

ACLU rep Christopher Anders calls the memo “the church-state equivalent of the torture memos,” referring to the Department's conclusion that the government does not have a compelling interest in forcing religious employers to hire people who reject the organization's religious beliefs.

This is incredible. Since when is it so awful for religious employers to consider religion in personnel decisions? Should the government intervene when a synagogue declines to hire a Muslim as a rabbi? Should a Unitarian congregation face liability if it won't choose a "fundamentalist" Christian to serve as its pastor? Adding government money to the mix doesn't change the analysis -- it is still not wrong for religious groups to draw their personnel from among those who voluntarily embrace the group's beliefs.

The fact of the matter is that both the Constitution and RFRA forbid the federal government from forcing religious groups to give up the exercise of a constitutional right in exchange for social service and education money.

Senator Obama has suggested that religious groups should not be allowed to preserve their religious character through staffing policies if they want to participate in government-funded programs. If Mr. Obama is elected president, it is conceivable that he will repudiate the Department's opinion and apply religion nondiscrimination rules to religious groups, thereby undermining genuine religious freedom.

RFRA and Bans on Religious Discrimination

As readers of this blog know, the freedom of religious organizations to take religious considerations into account in their personnel decisions is under attack. Certain federal statutes forbid participants in federally funded programs from "discriminating" on the basis of religion, even in their employment decisions. One objective of President Bush's faith-based initiative was to exempt religious organizations from these requirements. Legislation designed to accomplish that purpose never garnered the 60 votes necessary to get out of the Senate. As a result, these federal statutory provisions remain.

Of course, the continued existence of these provisions isn't the end of the story. In our view -- and in the view of some courts -- government violates the Constitution when it forbids religious organizations from taking religion into account in personnel decisions. The Constitution isn't the only limit on federal power over religious associational freedom; the Religious Freedom Restoration Act (RFRA) also restrains this power. In essence, RFRA declares that the federal government may not substantially burden religious exercise unless the burden is the least restrictive means of achieving a compelling governmental interest.

The question arises, then, whether federal statutes that condition receipt of federal money upon compliance with a religion non-discrimination rule violate RFRA (when applied to religious organizations). Professor Carl Esbeck of the University of Missouri has a forthcoming essay addressing this question. It is entitled, "The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Service Programs." An abstract of the article is on SSRN, and the paper can be downloaded from that site.

Federalist Society Church Autonomy Conference

The Federalist Society is sponsoring what promises to be a really terrific conference on church autonomy at Georgetown Law on March 14. Speakers include Professors Carl Esbeck and Tom Berg, both of whom advise CLS's Center for Law & Religious Freedom.

New article: When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis

SSRN has posted a draft of a new article by Prof. Carl H. Esbeck, a former Center director and current professor at the University of Missouri School of Law. The article is entitled When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis.

This article is part of a symposium The Religion Clauses in the 21st Century (April 12-13, 2007) sponsored by the American Constitution Society and the West Virginia University College of Law. The specific panel was on "Accommodation of Religion" and also featured Prof. Kent Greenawalt, whom Esbeck gently critiques in this article. Symposium articles will be published in Volume 110 of the West Virginia Law Review, fall 2007.

From the introduction:

From time to time I find myself using to good effect that proverbial question, “Is the glass half full or half empty?” That inquiry has its parallel in the subject before us. Asking “When may the government accommodate religion?” is the glass-half-full way of posing the question. Whereas asking “When is an accommodation of religion a violation of the Establishment Clause?” is the glass-half-empty means of framing the same question. In a modern, complex republic like ours, discretionary accommodations for the many and diverse religious beliefs that dot the land ought to be regarded as widely permitted except for a limited range of cases that are disallowed by the Establishment Clause. This is because the Establishment Clause is ultimately about freedom for religious individuals and the religious organizations they form, and thus the clause’s predisposition is rightly weighted toward what is permitted. As will appear below, the United States Supreme Court has indeed approached its modern cases as if the glass is half full, and thus we can expect to find that most legislative accommodations for religion will be upheld as constitutional.

Part I of this article brings to bear those foundational principles applicable to the question of religious accommodations that flow from the nature of the original Constitution of 1789, the Bill of Rights, and the text of the First Amendment. Then Part II identifies Black Letter Rules concerning discretionary religious accommodations, rules that are either derived from the foregoing principles or can be teased out of the case law of the Supreme Court. With only one exception, I am not a critic of the end result (if not always the rationale) of the work of the modern Supreme Court in this area of its Establishment Clause jurisprudence. Finally, Part III applies the principles from Part I and the rules identified in Part II to the Court’s “hard cases” in a manner that makes the law fairly predictable, as well as responds to Professor Kent Greenawalt’s article which is part of this symposium.

Download the rest of the article.

New Article: 60 Years of Establishment Clause Jurisprudence

Professor Carl Esbeck of the University of Missouri School of Law has published an intriguing new article examining the six decades of Establishment Clause jurisprudence since the U.S. Supreme Court's extremely important decision in Everson.

The article is entitled, "The 60th Anniversary of the Everson Decision and America's Church-State Proposition."