Religious Liberty Rights Research Articles

The False Promise of Expanded Religious Liberty Rights after the Covid-19 Cases and Fulton V. City of Philadelphia

The False Promise of Expanded Religious Liberty Rights after the Covid-19 Cases and Fulton V. City of Philadelphia

Qualified Immunity and Religious Liberty

Some illegal burdens on religious liberty are compensable only by money damages. And Congress enacted the Religious Freedom Restoration Act in part to address these cases. In Tanzin v. Tanvir, the Supreme Court recently held that RFRA permits damages suits against government officers in their individual capacities. But the Court assumed without deciding that officials are still qualifiedly immune from suit. So, plaintiffs’ ability to recover under RFRA now turns on the ability to identify existing law that “clearly establishes” their religious liberty rights. The Tanvir Court failed to comment on the substance of the qualified immunity defense in religious liberty cases. But courts have usually treated qualified immunity as a free-standing, homogenous doctrine not moored to any underlying claim, despite qualified immunity’s putatively statutory origins in the Civil Rights Act of 1871. And a growing body of recent scholarship is sharply critical of the state of qualified immunity doctrine. In particular, the Court’s requirement that plaintiffs point to “clearly established law” before they can overcome qualified immunity has been attacked as unjustifiable and disconnected from the animating justifications of qualified immunity. This paper makes two contributions to the literature. First, it approaches qualified immunity from a different angle than prior scholarship, which has tended to focus, understandably, on police use of force. But religious liberty cases raise unique concerns. This paper argues that applying the “clearly established law” test in religious liberty cases is both in deep tension with the Establishment Clause principle of denominational neutrality and unfaithful to the Religious Freedom Restoration Act. Second, this paper examines the consequences of the Court’s decision in Tanvir and demonstrates that the decision is unlikely to have any material impact without reforms to qualified immunity.

Religious Liberty in a Pandemic

The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

Bank of the United States v. Deveaux and the Birth of Constitutional Rights for Corporations

Bank of the United States v. Deveaux and the Birth of Constitutional Rights for Corporations ADAM WINKLER Introduction Recent decisions by the Supreme Court of the United States in Citizens United v. Federal Election Commission, holding that corporations have a First Amendment right to spend money to influence elections, and Burwell v. Hobby Lobby Stores, Inc., permit­ ting corporations to assert religious liberty rights under a federal law, have brought the issue of rights for corporations into the public consciousness. The rise of corporate constitutional rights is usually traced to an 1886 case, Santa Clara County v. Southern Pacific Railroad, which is often cited for establishing that corporations are “persons” under the Constitution. While the story ofthe Southern Pacific’s case is highly entertaining —involving an illustrious lawyer who deceived the Justices and a misleading headnote that claimed the Court had decided issues it had not—Santa Clara County was hardly the first Supreme Court case to address the constitutional rights of corporations. That honor belongs to another case decided almost eighty years earlier, Bankofthe UnitedStates v. Deveaux, and corporate personhood played little role.1 Although still cited from time to time for other issues, Bank of the United States v. Deveaux is one ofthe neglected landmarks of American constitutional law. The explicit question addressed in the case was whether business corporations had constitutional protections—namely, the right to sue in federal court on grounds of diversity under Article III. While there is little evidence the Framers ever intended the Constitution to apply to business entities, Chief Justice John Marshall’s opinion for the Court broadly construed the text to cover corporations. Marshall did not say that corporations were 238 JOURNAL OF SUPREME COURT HISTORY people; in fact, his reasoning rejected the core tenets of corporate personhood. Instead, Marshall based his decision on a very different conception of the corporation—as an association of people—that would prove far more influential than corporate personhood injustifying the expansion ofindividual rights to corporations over the next two centuries. The Bank of the United States The corporation behind the first corpo­ rate rights case was the Bank of the United States, arguably the first great corporation in the new nation. The brainchild of Alexander Hamilton, George Washington’s Secretary of the Treasury, the Bank of the United States was chartered by the first Congress in 1791 and carried the country’s name. Yet it was what Americans today would think of as a private business. It was a for-profit corpora­ tion with publicly traded stock, managed by executives who were accountable to stock­ holders. The federal government had seats on the board and a considerable number of shares, but otherwise the investors were private individuals. At a time when the handful of existing American corporations were local concerns—operating, say, a toll bridge across the Charles River—the Bank was a national enterprise, with headquarters in Philadelphia and branches stretching from Boston to New Orleans.2 The mission of the Bank of the United States was to secure America’s credit and stabilize the nascent nation’s precarious economy. There were already a number of state-created banks but their notes were unreliable. A federal bank, backed by Congress, would have the resources to guarantee its notes and offer a more secure place to hold the federal government’s deposits. Hamilton had been inspired by the success of an earlier bank, the Bank ofNorth America, founded during the Revolutionary War. When Washington’s army was short on rations and pay, with soldiers on the verge of mutiny and American currency nearly worthless, the Bank of North America was established to print more dependable notes and insure liquidity. The plan worked to the benefit of both the nation and investors, who received annual dividends of thirteen-tofourteen percent. The Bank ofNorth America was transformed into a private state bank in 1786, and today, after more than two centuries of mergers and reorganizations, remains a tiny part of Wells Fargo.3 Despite the success of the Bank of the North America, Hamilton faced significant hurdles in setting up his bank. One of them was the text ofthe Constitution. Did Congress have the power to...

CHURCH CORPORATIONS AND THE CONFLICT OF LAWS IN ANTEBELLUM AMERICA

AbstractScholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free-market competition” by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. InDartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

The Golden Thread of Religious Liberty: Comparing the Thought of John Locke and James Madison

The views of the American founders on religious liberty provide fertile ground for a range of different interpretations of the extent of legal protections for religious liberty and how religious liberty is justified. Although John Locke’s arguments for religious liberty were influential on the American founders, several founders, including James Madison, departed from or developed Locke’s arguments in a way that emphasizes how a human being’s religious obligations can limit the power of civil government. Contemporary religious liberty scholars have emphasized Madison’s apparent departure from Locke in order to help justify legal exemptions for religious practices. Although Locke did not directly link the duty of human beings to worship God according to one’s conscience to the right of religious liberty, I argue that each part of Madison’s argument is already present in Locke.

Constitutionalizing Corporate Law

The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity of business corporations. The result is a new reliance on state corporate law that gives a quasi-constitutional dimension to governance rules that were developed in a different era and with a different focus. The Article further illuminates the specific areas of mismatch between modern corporate rights doctrine and state corporate law. This examination offers two insights often overlooked in contemporary debate. First, it provides a deeper grounding for understanding where the Court has gone wrong and the importance of corporate governance proposals raised in the aftermath of its recent decisions. Second, the Article shows that the significance of the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. extends beyond issues of women’s rights and sexual orientation, as is often emphasized. The decision undermines the very assumptions on which corporate law has been built: that private ordering and external regulations can be relied upon to address concerns that corporate law has been given a pass to ignore.

God and the Profits: Is There Religious Liberty for Money-Makers?

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection. This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.Many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses. Thus businesses can be observed to engage in actions that are obviously motivated by religious beliefs: from preparing food according to ancient Jewish religious laws, to seeking out loans that comply with Islamic legal requirements, to encouraging people to “know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion.It is widely accepted that religious freedom laws protect non-profit organizations. The argument for denying religious freedom in the for-profit context rests on a claimed categorical distinction between for-profit and non-profit entities. Yet a broad examination of how the law treats these entities in various contexts severely undermines the claimed categorical distinction. Viewed in this broader context, it is clear that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.

Religious Policy in the People's Republic of China: an alternative perspective

During the first 30 years of its existence, the People's Republic of China (PRC) committed itself to making atheist Marxism the fundamental ideology of the country, depriving the Chinese people of their constitutional right of religious liberty. Since 1979, new policies, regulations, and legislation impacting religious freedom have been created and implemented. This paper proposes an unconventional framework for understanding China's religious policy. It attempts to explain the evolution of this policy through an analysis of the party's changing view of religion; the nature of its new religious policy and law; and the function of its supervision of religion. It calls for the consideration of the validity of a distinctive Chinese model in religious affairs similar to that which has evolved in economic development.

RELIGION, TAXES, AND SEX DISCRIMINATION:

Modern liberalism developed out of the strife of post-Reformation religious warfare. Among liberalism's central ideas were those of the individual's right of religious liberty and the separate jurisdictions of secular and religious authority. In societies that accepted these ideas and put them into institutional practice, levels of systemic religious violence were dramatically diminished. Moreover, the liberal principles that helped to build and sustain civil peace could make a strong claim to providing a just framework for addressing religious differences. Yet important normative questions have remained about the policies a liberal state should adopt toward religion.

Permission to Speak: Religious Arguments in Public Reason

In an important late essay John Rawls acknowledges the development in the Catholic Church’s attitude to politics. 1 He recognizes elements of the Catholic intellectual heritage and the contribution which it might make to political discourse, relying on the notions of natural law, common good and solidarity, as presented by authors drawing on that tradition. While acknowledging the development that has taken place, Rawls also reminds the reader of the problems that form the background to the emergence of political liberalism. A persecuting zeal has been the great curse of the Christian religion. It was shared by Luther and Calvin and the Protestant Reformers, and it was not radically changed in the Catholic Church until Vatican II. In the Council’s Declaration on Religious Freedom – Dignitatis Humanae – the Catholic Church committed itself to the principle of religious freedom as found in a constitutional democratic regime. It declared the ethical doctrine of religious freedom resting on the dignity of the human person; a political doctrine with respect to the limits of government in religious matters; and a theological doctrine of the freedom of the Church in its relations to the political and social world. All persons, whatever their faith, have the right of religious liberty on the same terms. y As John Courtney Murray, S.J., said: ‘A longstanding ambiguity had finally been cleared up. The Church does not deal with the secular order in terms of a double standard – freedom for the church when Catholics are in the minority, privilege for the Church and intolerance for others when Catholics are a majority.’ 2 The background to this acknowledgement has been an ongoing conversation, conducted mostly in the United States of America, about the role of religion in public life. In the literature of this conversation, religious thinkers recognize that philosophical liberalism as it is found in the American polity is hospitable to religion in public life, at least to the extent of being tolerant. 3 Finding themselves at home in the public space, these thinkers investigate the appropriate role of religious language and what religion has to contribute. Of course there is an acceptance of some separation and some difference, so that the rules of participation in the two spheres of religion and politics are different. Out of this literature has

Religious Liberty: An Inalienable Right

hold these truths to be self-evident, that all men are created equal and endowed with certain inalienable rights. With these familiar words of the Declaration of Independence, our founding fathers set forth their vision of this country. Among those inalienable rights is the right of religious liberty. Is this right of religious liberty self-evident? Perhaps in our country, perhaps even taken too much for granted. Most of the world, however, does not regard this truth as self-evident. There are violent conflicts in the Middle East not just between Arabs and Jews, but between Jews and fellow Jews, between Arabs and fellow Arabs, between Hindus and Sikhs in India, between Catholics and Protestants in Ireland. The self-evident character of the truth of religious liberty has certainly evaded the great masses of mankind. What is self-evident, however, is why Jewish-based institutions would enthusiastically endorse the principle of religious liberty upon which this country is founded. We Jews have suffered the slings and arrows of religious intolerance, of the mingling of church and state, throughout our history. We have suffered not only the denial of the right to worship, but the denial of the right to life itself because of religious intolerance. In America, religious liberty is not a Jewish issue, nor a Catholic issue, nor a Baptist issue, but an American issue. Although the AntiDefamation League of B'nai B'rith is constantly engaged in fighting prejudice, discrimination and infringements of religious liberty, we fight it as an aberration, as a violation of the American tradition, not as endemic to it. It is unique in the history of humankind that principles of religious liberty would be intricately woven into the fabric of history and society. The American experiment is still young. If this great experiment does not work, then we are bound to fall into a frightful abyss in which human rights are of no regard. History tells us that we must always be vigilant. We must always reaffirm our principles. Not only does history tell us this; so does human nature. Freedom is a natural

Religious Liberty for all? A religious right to abortion

One of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one’s faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity. But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. These plaintiffs argue that their state’s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, as well as the implications of denying the progressive religious liberty claim. Part I outlines the ballooning of religious liberty rights, and how they have usually helped conservative white Christians at the expense of less powerful groups. Part II applies the current expansive doctrine to a claim for a religious right to abortion, arguing it should succeed given recent decisions. Part III suggests that, despite the current doctrine, the Court will likely reject the claim and discusses what this failure indicates about the future of the Supreme Court.