Interview: Religious Liberty At The Present Time

First Things presents an interview by Mark Bauerlein with legal scholar Mark Movsesian, on the topic of church-state relations—the state of play, and the future. Watch the video here or read the transcript provided below.

Religious Liberty at the Present Time: An Update from Mark Movsesian from First Things on Vimeo.

MB: Hello there, I’m Mark Bauerlein, senior editor at First Things magazine, with another video interview. Today we have Mark Movsesian, who is Frederick A. Whitney Professor and Director of the Center for Law and Religion at St. John’s Law School. He is a graduate of Harvard College and Harvard Law School. Before starting as a professor, he served as an attorney advisor in the office of legal counsel at the Justice Department, and as a law clerk to Supreme Court Justice David Souter. He has written numerous articles in American and European law reviews, and as our readers know he is a regular contributor to First Things, both in the magazine and on the website. Mark, welcome.

MM: Thanks for having me.

MB: First, Mark, why don’t you tell us about this center that you run, the Center for Law and Religion at St. John’s?

MM: Sure. Well, the Center for Law and Religion is an academic and research center at the St. John’s Law School, and its mission is to focus on church-and-state issues, both in the U.S. and also abroad. In fact, much of the work that we do is comparative in nature, which sets us apart from many of the other law-and-religion centers here in the U.S. We have a number of programs, I guess. One important program we have is that we regularly host academic conferences and public events on church-and-state issues both in the U.S. and abroad. The most recent one we did was a conference on international religious freedom, or religious freedom as an international human right, where Pope Francis gave the keynote. That was at our campus in Rome. But we’ve done events here in New York, too. In fact, our next event coming up this October is the start of a new project, which we call the Tradition Project, which is a research project that’s going to look at the continuing value of tradition in today’s world, and also the relationship between tradition and change in democratic societies. The first session is going to be in October. We will gather together scholars and leading public figures and journalists and bloggers to talk about the subject of tradition in law and politics. The keynote is going to be given by Judge Michael McConnell, now Professor Michael McConnell, who runs the Constitutional Law Center at Stanford. That’s going to take place here in New York in October. And I should say that the inaugural session is funded by a generous grant from the Bradley Foundation. We have further plans. In future years we will do programs on tradition and culture and tradition and the global clash of values. So we view this as a multi-year research project.

Second, we also coordinate the law and religion curriculum at St. John’s, and principally here we host a Colloquium in Law and Religion, which brings outside scholars and judges to St. John’s to teach a seminar for selected students and faculty members, both from St. John’s and elsewhere. Most recently we had Justice Samuel Alito participate in this. We’ve had Robert George, we’ve had Philip Hamburger, we had the late Justice Scalia a few years ago, and that’s been a great success. And finally, we have a blog, the Law and Religion Forum, which provides regular commentary and updates on scholarship and recent cases in law and religion.

MB: You know, from your description, it makes me think of a different question, before we get into the broad issues of religious liberty in the U.S. When you look at the Center for Law and Religion—first of all, when was it founded?

MM: 2010.

MB: OK, so it’s quite new. What particular need did or does the Center for Law and Religion fill that, let’s say, the general law school curriculum or the General Ed curriculum wasn’t quite meeting?

MM: Well, so, when we began the Center in 2010, it was pretty evident that religion was making a comeback on the world stage. That people had dismissed religion for a long time as being unimportant, not something that was going to drive society in the future. And that was changing. And although we certainly have centers at law schools, including my own, that talk about constitutional law generally, there really wasn’t one that focused on law and religion per se. And there certainly weren’t a lot of people that were looking at law and religion on a comparative basis. So much of what we do at the Center is look at the way the U.S. treats church-state issues, and compare that with the way other societies, particularly in Western Europe, treat church-state issues. So the first project we did, the first research project, was on the separation of church and state in the U.S. and France. We have a Paris campus also, so we did this over there, and we compared the way the U.S. treats church-state issues with laïcité, which is the French way of doing things. We’ve also done research projects on state-sponsored religious symbols, both in the U.S. and abroad. We focused on a recent case in Italy, involving the display of crucifixes in public school classrooms. So I think what we as a center are doing that isn’t being done elsewhere, or not very much elsewhere, is look at these issues which have come to the fore of Western society on a comparative basis. We’re looking at the way different Western societies, different Western legal systems, focus on and treat these issues.

MB: Your description, Mark, really brings us to the meat of our discussion, and that is: In the last few years, we’ve certainly seen many religious controversies unfold, particularly relative to the law. How does the legal landscape of religious liberty look? And it seems to be changing every few months, but right now—we’re in summer 2016—what do you see at the present time?

MM: So, I think it’s a mixed situation, actually. I think it depends a lot on the sort of issues that we’re talking about, the particular issue that we’re talking about, but I think that there are perhaps some worrisome signs for the future going forward. And what I mean by that is, if we look at certain issues—for example, if you look at internal church governance—it seems to me that that’s very secure. We have a long tradition in America that churches should be able to run their affairs without outside interference. That seems pretty secure. We can talk about that some. If we move beyond that, though, to the question of religious accommodation more generally, there I think the picture is a lot more murky. And generally, I think, in our culture we’re seeing a shift in which it seems there is now a great deal of pressure being put on the traditional American ideal that religion is special and deserves special protection under the law. That’s a cultural shift—not a legal shift, but of course culture drives law in a democratic society, and so as the culture shifts, if we think more and more as a people that religion doesn’t merit special protection, or in fact that religion may be inimical to some of our values and needs to be restrained, then that’s going to change the law, too.

MB: What are the key cases that have put those questions, that conflict, front-and-center in the last few years?

MM: Let me begin by saying I’m going to try and keep things at a thirty-thousand-foot level, because the law of religious liberty can be very complicated. I have colleagues who are tax professors who talk all the time about how complicated tax law is, and I think my area’s pretty complicated, too. We don’t have an internal revenue code, but there are a lot of doctrines and sub-doctrines and exceptions that tend to make things hard. So I’ll try to keep things at a kind of high level, and I’m not going to talk about the Establishment-Clause issues, because I think those are somewhat different, and maybe merit their own conversation at some other point. But with regard to religious liberty, one set of cases recently has involved internal church governance. We’re talking here about the ability of churches, and not just churches—generally religious communities. I’m using that word to cover not only Christian houses of worship or Christian denominations, but just generally—

MB: So those could be Christian schools, hospitals—

MM: Or it could be synagogues, it could be mosques, it could be anything. The traditional idea has been that the state stays out of internal church governance. That churches have the right to fashion their own statements of faith, to decide how best to promote their mission, to choose the people who will represent them before the public and lead them, and that I think is pretty secure. That particular right I think is pretty secure. We had a case in the Supreme Court in 2012, a case called Hosanna Tabor, and this was a case that involved a claim by a minister from a Lutheran church that the church had dismissed her as an employee in violation of the federal employment discrimination statutes. Particularly, in her case it was the Americans with Disabilities Act. She said they fired her because she had narcolepsy, and that would have been a violation of the federal civil rights laws. And the Supreme Court said 9-0 that the religion causes of the Constitution, the First Amendment, gave the church the right to be exempt from the federal civil rights statutes, with respect to the hiring and firing and disciplining of ministers. Why? Because it’s essential to religious freedom under these clauses, the court said, under the Constitution, that churches have a right to govern themselves, to organize themselves as they see fit, to fashion their own messages, to pick people who will lead them, and that is inviolable. The state cannot get involved in that, even in order to promote the interest in preventing discrimination in employment.

MB: Wasn’t there a question that the work she was doing was in violation of some of the doctrines of the church?

MM: Yeah, that was one of the claims in the case also, that she had sued them. And that was a violation of church doctrine also. But her main claim was that they were discriminating against her because she had a disability, which would have been a violation of the Americans with Disabilities Act. And the Court 9-0 said that that Act simply does not apply, it’s called in law the “ministerial exception.” Because of the constitutional protection of religious liberty, that law simply does not apply to a church’s decision who will be its minister. And so, before we move on to other cases, I want to come back a little bit to the Hosanna Tabor case, because I think that the position that the Obama administration took in that case is very telling about a political shift that may be underway. We may be seeing a shift in our politics and in our culture, away from our traditional view that religion is important and religion should be protected in public life.

So that’s one set of cases. One set of cases involves the ministerial exception and the idea that when it comes to internal church governance, churches can really do what they want without the interference of the state. And I think that the Hosanna Tabor case, because it was 9-0, I think it suggests that that right is pretty secure for the time being. I don’t think that you’re going to have lots of incursions into churches themselves—what their ritual is, what their worship is, who they pick to be their ministers, how they fashion their mission in the wider world. So when we move beyond the question of protecting internal church governance and, as it were, what happens inside the church, when we move beyond that to questions of religious accommodation in the wider society, then I think the situation becomes more murky.

So let me explain what I’m talking about here. I’m talking about situations in which someone says, “I cannot comply with civil law, because that would violate my religious conviction. And because I can’t comply, I’m in a sense being excluded from public life in some way.” So a good example would be (and these are all real cases) a pharmacist who says, even though there is a legal obligation on me to fulfill a prescription for Plan B, which is a contraceptive that some people think is an abortion-inducing drug, the pharmacist would say, as a matter of religious conviction, “I think it’s an abortion-inducing drug, and I think as a matter of religious conviction that I cannot fill a prescription for that drug, because that would make me complicit in an evil act. Even though there’s a legal requirement that I do that, I can’t do it. So if you force me to do that, I have two choices—either I become a criminal, or I have to give up being a pharmacist.”

That’s the kind of situation that I’m talking about here. Or, for example, a Catholic adoption service that says, “Even though the law requires us to place kids to same-sex couples, we don’t think we can do that consistently with our religious conviction.” And in these cases, the person says, “I request an accommodation. I would like to be exempted from the operation of this law because it would violate my religious conscience, and you are making me violate my religious conscience as the price for my engaging in my occupation or for participating in public life.” That’s the question I’m talking about here.

Now, I should say also, this is a very complicated issue, and I think conservatives need to understand this. You couldn’t have a legal system in which everyone could say, “I am exempt from the law because of my religious conviction. I don’t want to pay my taxes, because it’s against my religion to pay taxes to the government.” You couldn’t have that, you couldn’t have a legal system. On the other hand, if religious freedom is to mean anything, then it has to mean the ability to at least be exempt from some laws at least some of the time, because your religious convictions forbid you from complying. So it’s a complicated situation, and throughout our history we as a country have tried to draw a line between too much liberty and creating anarchy, and giving too little liberty and not fulfilling the ideals of the First Amendment. So it’s a complicated issue.

MB: One of the things that you said earlier was the degree to which culture is going to shape the law. And drawing the line is very much the work of culture. Now, one of the ways in which a culture can change is with the change in demographics. You’ve written a little bit about this younger demographic, which is filled with the “Nones,” as they’re called: people who write down on the surveys, “Religion: None.” How do you think—what’s your prediction for this demographic?

MM: Right. It’s a complicated issue. So let me tell you where, right now, the law is on these questions, and then I can tell you why there are, at least in my view, some worrying signs for the future. And again, I’m doing this at a three-thousand-foot level. I’m sure many of your listeners know the law very well and will be able to spot that I’m leaving out some details, but I’m trying to keep it as general as I can for the purposes of this conversation. The basic consensus rule in America today in most jurisdictions when it comes to religious accommodation is what we call the “compelling-interest test.” The compelling-interest test is this: It says that the government cannot impose a substantial burden on a person’s exercise of religion unless the government has a compelling interest in imposing that burden on the person, and the government has chosen the least-restrictive means of doing so. So a substantial burden can’t be justified unless the government has a compelling interest and the government has chosen the least-restrictive means according to the standard in the federal statute called the Religious Freedom Restoration Act (RFRA). It’s also the standard in the majority of states, either by adoption of state versions of RFRA, or by state constitutional provisions and the way state courts have interpreted those provisions’ compelling-interest tests. Interestingly, that is not the test under the federal Constitution, at least as the court has interpreted it. Under the federal Constitution, the Free Exercise Clause, there is no right to a religious accommodation, if the law is generally applicable and neutral. This rule comes out of Employment Division v. Smith, from 1990—it was actually written by Justice Scalia—and the rule, at least under the federal Constitution, is no accommodation if the law is generally applicable, i.e. applies to everybody, and is neutral. So, for example, if you can show that the state is actually targeting religiously motivated conduct, then you move to the compelling-interest test under the Constitution, but not otherwise. So actually the current constitutional doctrine under Supreme Court precedent is rather more limited with respect to accommodation than these statutes are.

MB: In the light of history, did Justice Scalia ever express any doubts about that decision?

MM: That’s a great question. You might have expected he would, because certainly by the end of his tenure he was seeing things shift. But so far as I know he never did. And here’s how he explained his reasoning. If you look at the Smith case, to my mind there really were two things that were driving Justice Scalia’s opinion. One of them was the fear of anarchy. I mentioned before that if you let everyone get out of a law because he has a religious conviction against it, then you really are courting chaos, and you really can’t have that in a legal system. And I think that was one thing Justice Scalia was worried about. Second and more important, Justice Scalia was rather optimistic about the ability of religious minorities to go to the legislature and get an accommodation from the legislature. All he was saying was, the Constitution doesn’t require the legislature to accommodate you, but we have a tradition of generosity in America—we’re generous to religious minorities, and if a religious minority goes to a state legislature and says, “Look”—and indeed this happened in the actual case. The case involved the ingestion of peyote, which is a hallucinogenic drug, and a certain group of Native Americans, the Native American Church—which is not related to Christianity; it’s a Native American religion—used peyote in religious ceremonies. And they were eventually able to get a dispensation from the state to do this. So what Justice Scalia was saying is, “We don’t need to go to the Constitution. You can go to the legislature and the legislature will accommodate you.” Another example is RFRA itself. RFRA was passed in 1993. RFRA reinstated the compelling-interest test. And so Justice Scalia could point to that and say, “Look, I’m optimistic about this. We support religion in America.” And I think that has changed, but he certainly couldn’t have seen that in 1990.

MB: Where does the compelling-interest test come into play when, say, a gay couple goes to a conservative Catholic florist who says: “I’m sorry I can’t do your wedding, but there’s a florist one mile away. I can refer you to that florist.” But the state comes down against the florist.

MM: You would see in a case like that, it would come down as follows: The florist would say, “You are imposing a substantial burden on the exercise of my religion by forcing me to do this,” because I assume we have a law that says, “You can’t discriminate,” or “You have to take all comers,” or something like this. So, assuming the court agrees that this is a substantial burden—and I think some courts may not agree. Some courts may say, “It’s not a burden on your conscience simply to sell someone some flowers. That’s not a substantial burden on your religion. No one is telling you have to agree with what the person does when they buy the flowers.” Assuming you get past that, then the government could well claim, “We have a compelling interest in ending discrimination and in ending insults to human dignity”—third-party dignitaries’ harm is a thing to look out for in the cases coming up, I think—“and we have chosen the least-restrictive means of doing so.”

So this is why I say the situation is murky when it comes to religious accommodation going forward, because all these tests: compelling-interest, substantial-burden, least-restrictive-means —these are all judgment calls, and because they are judgment calls they depend a great deal on the intuitions of the people making the judgments. And if we have different federal judges and different Supreme Court Justices who are making these judgments, then you may have different outcomes. The compelling-interest test is what enabled Hobby Lobby Corporation to win in the Hobby Lobby case. Maybe I should tell you a little bit about Hobby Lobby.

Hobby Lobby is a case involving the contraception mandate under the Affordable Care Act. This is a mandate, which is imposed by HHS Rules, by Obama administration rules under the Affordable Care Act. The rules state that employers have to provide coverage for their employees, including coverage for, I think, sixteen contraceptives—four of which are, according to some people, anyway, abortion-inducing drugs. In the Hobby Lobby case, the employer said: “Well, as a matter of religious conviction I don’t feel comfortable covering these four abortion-inducing drugs.” The administration took the position: “Well, you have to do this, because we have a compelling interest in assuring cost-free access to these contraceptives by your employees.” And this went all the way up to the Supreme Court. The Supreme Court decided 5-4—it was a close vote, and Justice Scalia was still on the court in those days—the court decided that the contraception mandate violated the compelling-interest test. Why? Well, number one, the mandate, the court said, imposed a substantial burden on Hobby Lobby’s exercise of religion. I should say that whether Hobby Lobby could exercise religion was itself an issue in the case. The court said, Yes, Hobby Lobby is a person for purposes of the act and therefore could exercise a religion—although the court limited this to closely held, almost-family corporations like Hobby Lobby. They’re not talking about GM or something.

So it was a substantial burden on the exercise of religion. Assuming that the state had a compelling interest in assuring cost-free access to these contraceptives, nonetheless the state had not chosen the least-restrictive means of doing so. And the court said, “Look, there are other ways that the government could have assured cost-free access to these contraceptives and thereby promoted its compelling interest without forcing Hobby Lobby to pay for it.” That was also the issue in the recent case this term, the Zubik case, in which the Little Sisters of the Poor and other religious nonprofits were also contesting the contraception mandate, and by a vote of 9-0 the court sent that case back to the lower courts with a very strong suggestion that the government could find some way to allow these employees to get cost-free contraception without making the nuns pay for it. So that’s what this was, a compelling-interest test. You could look at this and say these have been victories for plaintiffs, but—

MB: Will Hobby Lobby have, do you think, a long-term influence?

MM: Well, this depends very much on who the judges are.

MB: A question of personnel, not principle so much.

MM: Both, both. Look, in American law we have a theory of precedent, and in theory Hobby Lobby is binding now on future cases. But the common law system is such that, quite apart from overruling the case, you can cut back on it in various ways. And as I said a minute ago, the compelling-interest test depends on a lot of judgment calls about whether something is a compelling interest, about whether there has really been a substantial burden, about whether the government has chosen the least-restrictive means. All of these depend very much on the intuitions of the people making the judgments. And I should say by the way in the Zubik case, most of the religious nonprofits lost their cases in the lower courts because we have now a number of judges appointed by the Obama administration who don’t see things the way the Hobby Lobby majority saw things. So, yeah, as you say, a lot of times in the law things follow the personnel.

MB: That certainly points out the importance of the election in November.

MM: Well, sure, because the next president will certainly appoint the replacement for Justice Scalia, and it’s possible the next president will have other appointments as well. Much of this depends on whether the Justices themselves decide to retire or not. Obviously the control of the Supreme Court is a very important question and, if I may say, not only the Supreme Court, because the lower courts are deciding these cases, too, and the president will also have a choice to pick hundreds of lower-court judges, and that will also determine the future of these cases.

MB: Professor Movsesian, thank you very much, and we would love to have you back.

MM: Glad to do it. Thanks for having me.