Law Review Articles by Tom Berg on Religious Organizational Freedom in the Benefits/Funding Context

Here are two law review articles from Tom Berg that help to advance the debate surrounding the freedom of religious organizations

Religious Organizational Freedom and Conditions on Government Benefits
Thomas C. Berg
Georgetown Journal of Law & Public Policy (2009)

This article is from the 2008 Church Autonomy Conference - "The Things That Are Not Caesar’s: Religious Organizations as a Check on the Authoritarian Pretensions of the State," (video of Tom Berg's segment) co-sponsored by Federalist Society and held at Georgetown Law School in March.

Berg takes concepts of church autonomy and church-state separation and argues that they call for respect for the freedom of religious organizations in a number of situations when the government is providing funding or other benefits and imposing conditions on them.

He defends religious organizations' freedom in three important contexts: freedom for religion-based hiring by religious organizations receiving funding, and freedom for engagement in political activity and for selection of clergy by tax-exempt organizations.

Religious Choice and Exclusions of Religion
Thomas C. Berg
PENNumbra, 2008

This an invited short reply piece in the U. Penn. Law Review's online format, PENNumbra. Here Berg responds to and criticizes a piece by Nelson Tebbe of Brooklyn Law School that defends the singling out of religion for exclusion from government benefits programs. Berg argues that preserving religious choice is a central concern of the Religion Clauses and based on precedent, tradition and concepts pertaining to the Religion Clauses, as well as the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.

Prof. Garnett on "Excluding Religion"

Professor Rick Garnett of Notre Dame has prepared a critical response to "Excluding Religion," an article in which Professor Nelson Tebbe argues that government may sometimes selectively exclude religion from its support programs.

One of the CLS Center's primary objectives is to establish that the Constitution generally forbids governments (especially state governments relying upon "Blaine Amendments") from selectively excluding religion from social service and education support programs. We welcome Prof. Garnett's contribution to the scholarly literature on this subject.

Prof. Mark Noll and Judge Michael McConnell to co-lead DC seminar on religion and the Constitution June 8-14, 2008

Two distinguished scholars, Prof. Mark Noll of Notre Dame and Judge Michael McConnell of the Tenth Circuit Court of Appeals, are to co-lead a seminar, The Influence of Religion on Constitutional Thought, to be held in Washington, DC at the George Washington University from June 8-14, 2008. The deadline to apply was April 21, 2008; however, applications are still being accepted.

Readers may be interested in Judge McConnell's most recent scholarly writing: Justice Brennan's Accommodating Approach Toward Religion, 95 Cal. L. Rev. 2187 (2007), from a symposium on the legacy of Justice Brennan. Here is an excerpt from p. 2189:

Justice Brennan defended interpretations of the Constitution that were as favorable toward religion--and in most cases, more favorable--than the interpretations of his more conservative colleagues. This should give pause to those conservatives who think that progressive jurisprudence is necessarily a threat to religious freedom or religious values, and it should also give pause to those progressives who now advocate a jurisprudence more hostile to religion.

"Nondiscrimination" and Tax-Exempt Status

We at the CLS Center believe that the application of religion and sexual orientation nondiscrimination rules to religious organizations is the greatest threat to religious freedom in America today. It appears as though many homosexual rights advocates want the law to treat those who hold traditional views on human sexuality the same way the law treats racists. The race analogy inevitably brings to mind the Supreme Court's decision in Bob Jones University, in which the Court upheld the IRS's decision to revoke the tax-exempt status of the university because of its policy forbidding interracial dating. If the race analogy is taken to its logical extreme, religious institutions that reserve the right to take homosexual conduct into account in the personnel decisions would lose their tax-exempt status.

More evidence that this is not just a paranoid fantasy: Widener law professor Nicholas Mirkay is publishing a second article urging the denial of tax-exempt status to religious entities that "discriminate" on the basis of sexual orientation or marital status.

This is why the pending cases pitting religious associational freedom against certain nondiscrimination rules are so important. If these cases are decided correctly, there will be clearer constitutional protection from those that want to punish religious groups for holding traditional views on human sexuality.

HT: Walter Weber of ACLJ.

Tom Berg Reviews Eisgruber and Sager's Religious Freedom and the Constitution

Can Religious Liberty Be Protected As Equality? Prof. Thomas C. Berg reviews Religious Freedom and the Constitution (Harvard, 2007) by Princeton Provost Christopher L. Eisgruber and Texas Law Dean Lawrence G. Sager in the April 2007 issue of the Texas Law Review.

Excerpt:

Christopher Eisgruber and Lawrence Sager are the most sophisticated proponents of an equality or nondiscrimination approach to the Religion Clauses. They began a dozen years ago with attacks on the idea, embodied in the Religious Freedom Restoration Act of 1993 (RFRA), that religiously motivated practices should be exempted from generally applicable legal restrictions in order to preserve a distinctive substantive freedom for religious exercise. They argued that showing special concern for freedom of religious practice "privileged" religion over deep nonreligious motives for action--violating a constitutional mandate of "equal regard" for such views--and that exempting religious conduct from restrictive laws was permissible only to protect religion from "hostility or indifference" compared with other "deep concerns of citizens."

With Religious Freedom and the Constitution, Eisgruber and Sager expand their approach to the full range of Religion Clause questions: free exercise exemptions, government-sponsored prayers and religious displays, and inclusion of religious entities in government funding programs. Their theory, "Equal Liberty," has two components. First, "in the name of equality," no persons "ought to be devalued on account of the spiritual foundations of their important commitments and projects"; beyond these concerns with "discrimination" or "hostility and neglect," religion should not be treated "as deserving special benefits or as subject to special disabilities." Second, there should be "a broad understanding of constitutional liberties generally": "rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish."
* * *
Most importantly, they confront the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern--one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality. To take the two cases Eisgruber and Sager first consider, why can there be a National Endowment for the Arts but not a National Endowment for Religion, and why are churches free to refuse women as clergy when other entities cannot practice sex discrimination in employment? Their answer to such questions is that every appropriate instance of special treatment for religion can be explained as "protecting persons from discrimination" or maintaining "parity, not advantage." They claim, among other things, that a nondiscrimination theory--protecting religious conduct from hostility or neglect--can generate a "robust" level of protection under the Free Exercise Clause.

The thesis of this Review, however, is that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although they reach many normatively attractive results--offering, for example, a rationale for potentially strong protection of free exercise rights--they can only do so by surrendering a primary focus on equality and nondiscrimination.

Download from SSRN or Westlaw. Citation: 85 Tex. L. Rev. 1185. Get more articles from Thomas Berg at SSRN and read his blogs at Mirror of Justice.

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."

CLS Officially Dubbed a "Politically Incorrect Group" by Academe

Charles Russo and Bill Thro have published "The Constitutional Rights of Politically Incorrect Groups: Christian Legal Society v. Walker as an Illustration," in the Journal of College and University Law (Vol 33, no. 2 at 361). The Journal is published by the National Association of College and University Attorneys (NACUA), and bills itself as "the only national law review devoted exclusively to higher education law." Russo is an education professor and adjunct law faculty at University of Dayton as well as past president of the Education Law Association, and Thro is the Solicitor General of the Commonwealth of Virginia and currently chair of the Journal's editorial board. While the authors provide the official christening of CLS as "non-PC" by the standards of Academe and its scriveners, thereby confirming what we've long suspected, they also get the First Amendment analysis largely right.

The authors initially note in passing an "inevitable tension between the freedom of association and a college or university's desire to prevent discrimination." Id. at 372. (Why there should be a tension between a public institution's laudable desire to prevent religious discrimination and a religious student group's freedom to associate around religious ideals is puzzling, but the authors unfortunately spend little time dissecting this apparently ubiquitous academic sop.) But reviewing the Supreme Court caselaw governing the rights of student associations, including Healey v. James and Board of Regents v. Southworth, the authors nonetheless conclude what CLRF attorneys have been telling NACUA's members for a number of years in cases like CLS v. Walker - that religion is different from other protected statuses because religion is belief. Russo and Thro comment:

[R]egardless of whether an organization may discriminate based on immutable characteristics, it may discriminate based on belief. In other words, the Democrats can exclude Republicans, the Muslims can exclude the Christians and Jews, the Catholics can exclude Protestants, and the Students for Abstinence until Marriage can exclude those who believe in casual sex. An institution may not deny recognition, access to facilities, or funding because of a group's beliefs.

Id. at 375. "In sum," the authors pointedly conclude, "the constitutional rights of the politically incorrect student organizations largely trump a public college or university's desire to prevent student groups from engaging in discrimination. Discrimination on the basis of belief is absolutely protected." Id. at 386. Russo and Thro should be commended for speaking plain sense even though their conclusions may not be politically popular in the current environment on college and university campuses. Here's hoping NACUA's members, and the university adminstrators they counsel, are listening.

The Supreme Court's Use of History in Religion Clause Cases

George Fox University professor Mark David Hall has published a law review article entitled "Jeffersonian Walls and Madisonian Lines: The Supreme Court's Use of History in Religion Clause Cases." It is published in volume 85 of the Oregon Law Review, starting at page 563.

Hall writes that "[t]he primary purpose of this Article is to provide a systematic account of how Justices have used history to help them interpret the Religion Clause." Hall analyzed appeals to history in 115 Supreme Court cases. He observes that Justices are more likely to invoke history in Establishment Clause cases than in Free Exercise Clause cases. Justices most frequently cite the writings of Jefferson and Madison. Hall contends that liberals are slightly more likely than conservatives to invoke history.