Say It Ain’t So, Mr. Huntsman
16 Jan
I was very sorry to see Jon Huntsman’s somewhat abrupt–though inevitable–departure from the GOP presidential race.
There is no question that Mr. Huntsman is by far the most qualified candidate in the race. His politics are moderate, and his intellect is obvious to those who have listened to him in the (seemingly endless) series of debates. He was well-liked and productive as Governor of Utah, and meanwhile he represented the interests of the United States as Ambassador to China in exemplary fashion. Most impressively, he served under a Democratic president without regard to the political risks to his own presidential aspirations.
Pro-environment, pro-reasonable regulation of the activities of large financial institutions, pro-civil unions, and pro-flatter taxes, Huntsman’s brand of politics seems to have found the nation’s political pulse at the moment.
More importantly, though: he offers a way forward for a Republican Party that seems hell-bent on turning back the clock on the progressive social change that we’ve fought so hard to achieve over the last several decades. The GOP would be wise to embrace Huntsman-like candidates in the future, or risk becoming entirely irrelevant in the 21st century.
Why the Supreme Court Got it Wrong on the Religion Clauses
12 JanA critical evaluation of the role of religious institutions in American life must begin with one, unwavering acknowledgment: America is not a theocracy.
In a theocracy, particular deference and reverence are conferred upon the clerics, the theologians, those who exercise authority in the religious sphere. Religious tenets and doctrine are sufficient (and, indeed, the ultimate) bases of public policy. Although some theocratic regimes may cede a degree of space to secular authority, ultimate power lies with the religious class. Such is the case in Iran, for example, where a highly powerful class of clerics presides over a government in which the populace “elects” a president as the secular head of government. Such a system cannot countenance laws or policies which in any way undermine the state’s pre-ordained religious imperative.
The United States, as I stated at the outset of this piece, is not a theocracy. That may seem like an obvious statement, but it is a concept the development of which in terms of the American legal system has changed rapidly over the last several decades. The First Amendment of the United States Constitution states, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Collectively known as the Religion Clauses of the First Amendment, and separately as the Establishment Clause and the Free Exercise clause, these clauses establish robust protections for religious freedom, but a fierce debate persists concerning their proper interpretation. Certain interests, notably what I will refer to here as “Political Christianity”—by which I mean the collection of structures such as the Catholic Church and the mega-churches of the Evangelical movement—argue that the Establishment Clause simply prevents the federal government (and, via incorporation doctrine, the states as well) from forming a state church. What the authors of the Constitution really meant, according to this view, was that ALL CHRISTIANS would be permitted the freedom to practice freely without interference from the state. Catholics and Protestants could lay down the arms they’d carried against each other in the bloody wars of religion that had ravaged Western Europe for centuries.
Since the beginning of European colonization of the North American Atlantic seaboard, however, there have been non-Christians. The Jewish population of Newport, RI, for example, dates back to the seventeenth century, with the first Jewish families arriving in Newport in 1658, and the dedication of the Jewish Cemetery at Newport in 1677. The Spanish and Portuguese Synagogue in New York City is the oldest Jewish synagogue in the United States, established in 1654. Islam, too, has deep roots in America. Historians estimate that out of the roughly 500,000 African slaves in the United States by 1800, between 15-30 percent of all enslaved African men, and some 15 percent of all enslaved African women, were Muslim. The late nineteenth century saw a significant wave of Muslim immigration to the U.S. from the Ottoman Empire as well. Despite this diversity, few American courts were inclined to read the First Amendment to include the protection of minority faiths from indoctrination in public institutions; hence, organized denominational prayer in public schools was not only acceptable, but essential in the education of children.
However, as society changes, so, too, does our understanding of the Constitution. As more and more Orthodox Christians and Jews came to the U.S. throughout the latter part of the 19th century and the 20th century, the continuation of formal Christian/Protestant prayer in increasingly diverse public school settings made less and less sense. What value do the religious protections of the First Amendment have, after all, if, say, a Jewish family is forced to support the Christian indoctrination of their child through school taxes? In 1962, the Supreme Court agreed, prohibiting organized school prayer in the landmark case Engel v. Vitale. Public institutions cannot endorse any religious agenda, even a non-denominational one. Thus, courts have come to distinguish between the civil and religious spheres. Civil government ought not interfere in the life of America’s religious institutions, but, similarly, religious institutions may not impose on the functioning of civil government. Those two ideas are logically equivalent, so it makes sense that proscribing civil interference in the affairs of religious institutions must also require religious interests to refrain from disturbing the confessional neutrality of the civil sphere.
I say all of this as preface to a brief commentary about the Supreme Court’s decision handed down on January 11th in Hosanna-Taboor v. Equal Employment Opportunity Commission. The facts of the case are as follows: a school teacher at a Lutheran synod in Missouri, after going on leave to treat a medical disability (narcolepsy), is discharged after the synod determines (despite the insistence of the teacher’s doctor and her own assertions to the contrary) that the teacher will no longer be able to fulfill her duties. After the teacher threatens to file a lawsuit, the synod summarily terminates her employment. Subsequently, the teacher filed a lawsuit with the EEOC, alleging improper discharge on the basis of disability and retaliation under the Americans with Disabilities Act and Michigan state law.
A federal district court held that a civil court could not second-guess the synod’s decision to terminate, citing what is known as a “ministerial” exception to federal anti-discrimination laws. The logic: a religious institution must be able choose its “ministers” (i.e., religious officials and preachers of the faith) without government interference pursuant to the Establishment and Free Exercise clauses of the First Amendment. Thus, a “minister” cannot bring a lawsuit under the ADA against a religious employer. The matter is simply off-limits for the courts. The Sixth Circuit Court of Appeals reversed on the grounds that Ms. Perich (the wrongfully-terminated teacher) did not qualify as a “minister” and thus the district court should have considered the merits of the discrimination lawsuit.
The Supreme Court heard the case, and, in a landmark opinion for a unanimous court by Chief Justice Roberts, found that the Sixth Circuit had gotten it wrong. The High Court recognized as a matter of law a so-called “ministerial exception” to federal antidiscrimination statutes, and further found that this school teacher qualified as a “minister” under that exception.
Not only do I take issue with such an exception, but I would make the case that this unanimous ruling reflects a deeply flawed understanding of what the relationship between religious institutions and civil society ought to be. The Establishment Clause does not allow religious institutions to use their beliefs and practices as a premise for violating neutral laws that do not regulate religious belief or activity. This is not just my opinion; the Supreme Court said so explicitly in Employment Division v. Smith (1990). In that case, the court held that a Native American who had used peyote in the course of religious ritual could be denied unemployment benefits by the State of Oregon due to the unlawful consumption of a controlled substance. The fact that peyote consumption is essential to a group’s sincere religious beliefs? The court said that states may enforce “neutral laws of general applicability,” even if a religious group can present a valid case that the law infringes upon their religious practices. The opinion, in my view, correctly finds that the Establishment and Free Exercise clauses compel the state to allow people and institutions to practice and maintain their beliefs and rituals freely; it does not accord them absolution from complying with the law or supremacy over civil laws.
Why? Because, as I said at the beginning of this whole spiel: religious institutions are supreme only in theocracies.
This idea is an uncomfortable one for powerful institutions like the Catholic Church. They don’t like the fact that civil society no longer tolerates certain medieval practices to which they stubbornly cling: gender inequality, employment discrimination, and so on. The Church may continue to insist upon hiring only people who share their beliefs. That’s their prerogative.
But when a religious institution can unlawfully discriminate against a person with disabilities merely because that person works for a religious employer, we should reject the notion that somehow the affair is off-limits for a court of law in the United States.
Quite simply, it comes down to this: in order to enjoy the religious liberty afforded by our laws, religious institutions ought to be expected to comply with the same.
Because, once again, this is America. Not Iran.
Santorum’s Folly
6 JanAs a current law student, it is unfortunate to think that Santorum has a legitimate legal degree. His argumentation is both poor and factually incorrect. I will briefly respond to his contentions:
(1) The bridge-building analogy is erroneous. While I’m heartened to see that Santorum suddenly has such deference for the lawmaking function of legislatures, he is actually incorrect. Whenever Congress, for example, passes a law which in some way restricts behavior or conduct, a constitutional challenge to the law makes it incumbent upon GOVERNMENT, not those who oppose the law, to affirmatively demonstrate the state’s basis for the law. In a constitutional democracy we are inherently skeptical of laws that seek to restrict personal liberty. Santorum also ignores the equal protection problems with prohibitions against gay marriage.
(2) The bigamy argument is a tired conservative trope. Taken ad absurdo, we could use Santorum’s argument to just not have any government involvement in marriage at all. “Once a man and a woman can marry each other, who knows what might happen! A man might then go ahead and try to marry multiple women!” And, actually, that does happen, and bigamy is a crime in all 50 states. But bigamy is illegal for good reasons: it has historically been used by men to the detriment and economic disempowerment of women. It has also been used for the purposes of tax fraud. Gay and lesbian Americans do not seek the right to marry multiple people, and it is unclear how the bigamy inquiry is at all relevant to the marriage debate.
(3) I would agree with Mr. Santorum that children deserve two loving, stable parents and strong households. That is a policy goal that the state can pursue by implementing many of the economic measures that Mr. Santorum opposes: stronger unemployment compensation for struggling families, universal health care, and so on. But that is beside the point. Mr. Santorum and those who espouse his views, tellingly, never actually show HOW a prohibition on gay marriage at all furthers his goal of increasing the number of straight marriages. I suspect Mr. Santorum believes that gay men and lesbians are just making some sort of a voluntary, conscious lifestyle “choice,” and that only were there no gay marriage there’d be a floodgate of gay men and lesbians just itching to get married to members of the opposite gender. I have news for you, Mr. Santorum: if that is what you think, you will be sorely disappointed. This is about how people are hard-wired, and in the 21st century I’d like to think politicians wouldn’t presume to know better than the American Medical Association, the American Psychological Association, the American Sociological Association, those groups’ European and Canadian counterparts, etc. The former senator says he wants a reason-based debate? Give me your reasons, senator! I’m still waiting to hear a sound legal argument against gay marriage.
Rainbow Gefilte Fish 