Getting to Purple: Religious Freedom Arguments for the Persuadable Middle

1. GETTING TO PURPLE: RELIGIOUS FREEDOM ARGUMENTS TO REACH THE PERSUADABLE MIDDLE Thomas c. Berg, university of st. Thomas school of law, minnesota

2. Background: issues & the legal framework • Issues: objections to facilitating abortion; maintaining standards re marriage/sexuality etc. • Religious organizations (churches, adoption agencies, schools); for-profit businesses • The arguments for the former are stronger, more expansive, more central • Preserving religious freedom in the face of generally applicable laws and regulations: exemptions/ accommodations, through either: • Litigation—under general standard requiring that if the government “substantially burdens” religious freedom, it must serve a “compelling interest,” by the “least restrictive means”: religious freedom laws (federal and state RFRAs), state constitutional provisions • Lobbying for specific legislation—sometimes along with passage of the underlying law, sometimes later • Questions re the scope of protections: • Scope of specific legislative exemption: who (beyond churches) can claim it? How far does it extend? • What is a compelling interest? What constitutes a “less restrictive means”?

3. 3 kinds of arguments • Answers that society gives to the above questions will be affected by degree of sympathy for the religious dissenter’s predicament/situation • In an atmosphere of skepticism/hostility to many religious freedom claims—especially claims by traditionalist believers—we need arguments to reach the persuadable middle • Some arguments—tradition, original intent, America’s “religious nature”—are losing force • Civil liberty arguments • Civic republican arguments (religious organizations’ contributions to society) • Pragmatic arguments

4. 1. civil-liberty arguments • Religious identity is a crucial/pervasive part of personal identity • Law professor Alan Brownstein: “For serious believers, religion is one of the most self-defining and transformative decisions of human existence. Religious beliefs affect virtually all of the defining decisions of personhood—whom we will marry and what that union represents, the birth of our children, our interactions with family members, the way we deal with death, the ethics of our professional conduct, and many other aspects of our lives. Almost any other individual decision pales in comparison to the serious commitment to religious faith.” • It’s also interconnected—therefore, departing from God’s will in one respect is not just an isolated matter for the believer • Christopher Eisgruber and Lawrence Sager: “[R]eligious affiliation typically implicates an expansive web of belief and conduct”—a “comprehensive” web rather than a set of “discrete propositions or theories”—and “the stakes of being within or without these webs of belief and membership can be very high,” such as “leading a life of virtue or a life of sin,” or “fulfilling or squandering one’s highest destiny.”

5. Civil liberty arguments (cont’d) • Draw parallels to secular claims: e.g. in contraception dispute, note that progressives support(ed) corporate social responsibility (re. sweatshops or South Africa) • Also e.g., parallels to same-sex marriage claims: If one supports same-sex marriage, one should also support strong protection for religious freedom (Laycock/Berg brief in Obergefell v. Hodges; also here) • “You can believe, but don’t discriminate (don’t act)”? BUT “believers cannot fail to act on God’s will, and it is no more reasonable for the state to demand that they do so than for the state to demand celibacy of all gays and lesbians.” • “You can follow it in church, but keep it there”? BUT “same-sex couples claim a right beyond the bedroom: the right to participate in the social institution of civil marriage. Religious believers likewise claim a right to follow their faith not just in worship services, but in the charitable activities of their religious organizations and in their daily lives.” • “[B]othsame-sex couples and religious dissenters face the problem that what they experience as among the highest virtues [and involves giving to others] is condemned by others as a grave evil.”

6. 2. Civic republican arguments: beginning with evidence • Religious groups (even dissenters) contribute indispensably to the common good, especially service to the needy), which progressives (should) particularly value • Magnitude of services: “If [faith-based service organizations] would disappear overnight, a crisis of the first magnitude would exist in the nation’s social safety net.” Stephen Monsma, Pluralism and Freedom: Faith-Based Organizations in a Democratic Society (and other sources). Just a few examples: • Catholic Charities USA provides more persons in the U.S. with social services than any entity except the federal government (more than 10.2 million persons in 2010) • “A survey of nonprofit relief efforts following the 2005 hurricanes Katrina and Rita in the New Orleans and Gulf Coast areas found that 59 percent of the organizations providing relief were congregations or other faith-based agencies”; religious agencies also tend to serve more persons than secular agencies • Faith-based foster-care and adoption agencies place thousands of children a year; “[i]f [faith-based agencies] would disappear overnight, the whole structure would collapse” (CEO, National Council for Adoption)

7. Civic contributions: distinctive religious contributions • Stephen Monsma: “Faith-based organizations often fill a niche that either government or large, secular social service agencies would have a hard time filling” • E.g. report on successful prisoner reentry programs: “Faith-based institutions may be able to affect returning prisoners in ways that other programs do not,” because they “can help create the conditions for personal transformation, provide inspiration, and motivate individuals to achieve individual goals” • Religious institutions mobilize social capital—volunteers, donations—for service to nonmembers, at higher levels than nonreligious organizations (John DiIulio) • Robert Putnam and David Campbell: “regular churchgoers are more than twice as likely to volunteer to help the needy, compared to demographically matched Americans who rarely, if ever, attend church” • Steve McFarland, World Vision: “‘We are not just another humanitarian organization, but a branch of the body of Christ. . . . The key to our effectiveness is our faith, not our size. If we would lose our birthright, if we ever would not be able to determine our team, we’d lose our vision.’”

8. THE CIVIC CONTRIBUTIONS OF DISSENTers • Protecting the dissenter, even though he departs from social morality on this particular law, serves society by leaving the dissenter free to continue to serve others, in distinctive ways reflecting its identity—and motivated by its identity • George Washington, Letter to Newport (RI) Quakers, 1789: “[I]it is doing the people called Quakers no more than justice to say, that (except their declining to share with others the burden of the common defense) there is no denomination among us, who are more exemplary and useful citizens…. [I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.” • “[Organizations’] best contribution to the common good may be an uncommon contribution” (Stanley Carlson-Thies)

9. CIVIC contributions: Some quotes from liberals • Democratic Party Platform 2012: “We know that our nation, our communities, and our lives are made vastly stronger and richer by faith and the countless acts of justice and mercy it inspires…. People of faith and religious organizations do amazing work in communities across this country and the world, and we believe in lifting up and valuing that good work, and finding ways to support it where possible.” • Among respondents reporting no religious affiliation (2 to 1 liberal/Democratic), 77 percent said that religious organizations “play an important role in helping the poor and needy” (Pew Research Center) • President Obama, welcoming Pope Francis, Sept 22: “[Your visit] reveals how much all Americans, from every background and of every faith, value the role that the Catholic Church plays in strengthening America. From my time working in impoverished neighborhoods with the Catholic Church in Chicago, to my travels as President, I’ve seen firsthand how, every day, Catholic communities, priests, nuns, and laity feed the hungry, heal the sick, shelter the homeless, educate our children, and fortify the faith that sustains so many.”

10. 3. Pragmatic arguments • Religious freedom accommodations can remove/mitigate objections to the underlying legislation, make it possible to protect both interests—and reduce conflict and resentment • Same-sex marriage (example of enactment in NY state the second time around) • Possibilities for Utah-type compromise (employment discrimination laws, with meaningful religious exemptions)—although it seems doubtful right now • Making this argument depends on: (a) the underlying legislation is reasonably likely to pass eventually, (b) the underlying legislation is not so odious that we can’t help it in any way

11. The nature of these 3 arguments • No one of these arguments is likely to be sufficient in itself • They aren’t the only arguments • They are the ones most likely to appeal to those who reasonably disagree with the underlying belief • Arguing for religious freedom now is often a kind of apologetics: arguing to others based on those standards that are shared

12. In application: acknowledging competing interests • Protect other legitimate interests (if religious freedom is protected too) • Sexual-orientation civil-rights laws with meaningful religious-freedom protections (the “Utah compromise”)? • Limits on scope of RF protections (under “compelling interest” test or specific legislation) • Limits on accommodation of for-profits (a problem with versions of First Amendment Defense Act that protect all closely-held corporations no matter the size) • Limits on accommodation of those holding monopoly positions (“chokepoints”) • E.g. human-trafficking grants and abortion: USCCB as holding the prime contract, vs. simply one of the contractors • Limits on accommodation of government employees in their duties, esp. directly affecting the public • Start by pushing for broadest protection as bargaining leverage?—Perhaps; but overly broad proposal can easily become so unpopular it kills the initiative • It depends on the issue (politically and in principle): e.g. take a more expansive position against abortion, than against same-sex relationships in all contexts

13. Conclusion: pope francis • “Freedom to serve,” especially those in greatest need: • “[R]eligious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. Our rich religious traditions [also] serve society…. They call to conversion, reconciliation, concern for the future of society, self-sacrifice in the service of the common good, and compassion for those in need. At the heart of their spiritual mission is the proclamation of the truth and dignity of the human person and human rights.” • John Allen: “Francis’ line about giving the Church freedom and space to bring the Gospel to the ‘existential peripheries of society’ is potentially a game-changer”: it “could help the push for religious liberty transcend the divisions often associated with the wars of culture.” • Respecting/acknowledging other interests • Joy in serving and in meeting the challenges: • “The life of the Church should always reveal clearly that God takes the initiative, that ‘he has loved us first’ (1 Jn4:19) and that he alone ‘gives the growth’ (1 Cor3:7). This conviction enables us to maintain a spirit of joy in the midst of a task so demanding and challenging that it engages our entire life…. Instead of seeming to impose new obligations, [Christians] should appear as people who wish to share their joy, who point to a horizon of beauty and who invite others to a delicious banquet.” (EvangeliiGaudium, paras. 12, 15)

14. Questions? • tcberg@stthomas.edu • (651) 962-4918 • Resources: • Laycock/Berg brief on protecting same-sex marriage and religious freedom • Berg, Progressive Arguments for Religious Organizational Freedom, 21 J. Contemp. Leg. Iss. 279 (2013) • Berg, Religious Accommodation in the Welfare State, Harv. J.L. & Gender 104 (2015) • Brownstein, Gays, Jews, and Other Strangers in a Strange Land, 45 U. San. Fran. L.J. 389 (2010) • Stephen Monsma & Stanley Carlson-Thies, Free to Serve: Protecting the Religious Freedom of Faith-Based Organizations (Baker 2015)