Religious Liberty Today

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Last night the Chicago Chapter of the J. Reuben Clark Society (the professional society for Mormon lawyers) sponsored an event titled “Religious Liberty Today: An Interfaith Discussion.” It was a great event, and I’d like to tell you about it.

We gathered at 6:00 at Elevance Renewable Sciences in Woodridge, Illinois (if you know Chicago, it is just south of where I-355 ends). Our board member who orchestrated this event works there as an IP attorney, and the venue ended up being perfect. It’s a beautiful building, and even though it’s in sort of an industrial park, it was surrounded by tree covered rolling hills. (We could have used a stake center, but we wanted to have a more neutral site, and this fit the bill.)

A little over 50 people came, including a number of Muslims (maybe 10? I’m not sure), which was I thought a good turnout for an event like this. We had a dinner in the cafeteria catered by Naf Naf Mediterranean Grill. The food was exotic and good and there was plenty of it.

After dinner, we moved to the auditorium, which was absolutely perfect. It was just the right size for our group, had several rising levels so there wasn’t a bad seat in the house, and had all the technology gadgetry one could want.

There were three presentations. First up was Nicholas T. Miller[1], “What 500 Years of Protestant Liberty Tells Us About How to Make America Great (Again.)”  His title is a reference to the 500th anniversary of the Protestant Reformation (meaning the nailing of the 95 theses on October 31). The word “Great” in his title is in parentheses–IE was America ever truly “great”? Mentioned quasi-theocracies in the 17th century,, slavery in the 18th and 19th centuries, Jim Crow in the 20th. But suggested at some relative level there has been some greatness. In the 19th century, two pillars: republicanism (small r), meaning representative government, checks and balances, rule of law, and protestantism (small p), meaning liberty of conscience, religious freedom, free exercise. These  ideas carried much of the day in the 20th century; countries opposed had to suppress these ideas by force. We thought liberal democracy had won.

But then things changed. 9/11, War on Terror, Arab Spring (-> strong man rule). Many questioning liberal democracy. Renewed interest in nationalistic populism. (Brexit, Trump, other elections.) Some say this is an attempt to return to roots, to defend mainstream Christianity. But prioritizes a certain type of Christianity. Echoes of the Inquisition, the Crusades (though not so extreme). President seems to jump back to Colonial government; Founders went the opposite way, to representative government.

American Greatness in Miniature: the case of Pennsylvania. William Penn, 1682. Strong, independent judiciary, rule of law, civil rights and liberties, freedom for all religious groups (even Catholics, Jews). Penn actually recruited religious minorities, generous immigration policies. Liberty and diversity not an obstacle, but an engine, a model for the nation.

Next up was Steven T. Collis[2], “Healing the Nation’s Wounds: Religious Liberty as a Liberty for All.” He started with Gordon B. Hinckley’s quote of Alexis de Tocqueville (which he acknowledged doesn’t seem to actually come from de Tocqueville; no one seems to know where it came from):

I sought for the key to the greatness and genius of America in her harbors, in her fertile fields and boundless forests, in her rich minds and vast commerce, in her public school system and institutions of learning. I sought for it in her democratic congress and in her matchless Constitution, but not until I went into the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and her power. America is great because America is good. And if America ever ceases to be good, America will cease to be great.

Steven articulated four key principles:

  1. Religious liberty matters. Told the story of Anthony Coleman, a Catholic priest in early Manhattan. A man confessed to him he had robbed some jewelry, and the priest told the man he would return the jewelry as part of his penance. The authorities told the priest he would have to disclose who the thief was, but he refused to violate the seal of the confession. A Protestant lawyer ended up defending the priest and eventually won. Forcing people to violate their deeply held beliefs leads to human suffering.
  2. It matters to all of us. To become a notary public, a man had to sign a document stating he believed in God. But he didn’t; he was an avowed atheist. Lost in the lower court, lost in Maryland, but won 9-0 in the U.S. Supreme Court.
  3. In jeopardy right now. For many years, there was no religious liberty, government could regulate anything. Religious liberty established in the 1940s: government had to have a compelling interest to burden and follow the narrowest path. But in the 1990s Scalia changed the law. If neutral and generally applicable, that’s enough. Government not required to protect, but is free to do so by statute. But statutes can be done away with; no constitutional protection. (Described case on abortion pills in Washington. Religious pharmacists required to pass them out contra their religious beliefs. Courts no help. (In the end the government caved due to publicity.)
  4. We need to come together to protect religious freedoms. Story of the four Immortal Chaplains who represented different faiths. On a troop transport ship that was hit by a torpedo. Gave their life vests to soldiers who needed them; last thing soldiers in the water saw was them in the sinking boat arm in arm each praying in his own way in turn; had a profound effect on all who witnessed it.

[At this point we took a break so that our Muslim guests could say their evening prayers in a room we had set aside for the purpose.]

Third up was Azam Nizamuddin[3], “Religious Freedom in the Age of the Travel Ban: Contemporary Challenges to Religious Liberty.” Personal background: he is American, was raised here, has four kids. Family from India, of the Muslim faith. In December 2015 he came home from giving a final at Loyola when his daughter asked him, “Daddy, do we have to leave this country?” (Trump had just made comments about how we don’t want any more Muslims here.) He had not been affected like this personally growing up, but now it was affecting his children.

Where is this coming from? Private challenges and governmental challenges. Need strong independent courts to prevent government overreach. Private forces shaping majority opinion.

Government challenges: Anti-Sharia laws (22 states, although Oklahoma’s deemed unconstitutional), Anti-Muslim, Anti-Muslim building, travel and immigration restrictions.

Law enforcement: Secret surveillance, religious profiling, informants posing as converts.

Executive Orders: terrorist designations, freezing or blocking religious institution assets, Trump Travel Ban.

Private challengers: Fear Inc. 2, media and social (Fox and Breitbart), individual hate crimes, mosque burnings, travel and business.

Fears and threats: Religious nationalism, imagined threats from the other (Mexican, Muslim, immigrant), 9/11, Iraq, Taliban, ISIS, supposed decline of the West and European culture, a call to return to a supposed golden age (Great Again).

An independent judiciary is essential, but not enough. Society has to overcome: legal, social, political. This has to be based on fundamental morality.

We then brought all three presenters to the stage for a panel discussion. I manned one of the cordless mikes up and down an aisle, so I didn’t take any notes, but I’ll try to convey some of the discussion from memory:

  • Someone asked about the recent religious liberty EO. Shockingly none actually used the term of art “nothingburger,” but in substance all agreed with the opinion expressed by our esteemed co-blogger here.
  • Someone asked about the impact of Gorsuch on the court for religious issues. (Steven knows Gorsuch personally.) They agreed that they don’t expect much of an impact, since he’s taking Scalia’s spot (and Nick opined he would be an improvement because he didn’t think Gorsuch would have written the opinion Scalia wrote changing the law described above). All agreed that the next justice appointed will be the more significant factor.
  • Someone asked about religious accommodation in LGBT/Christian disputes over wedding cakes and the like. Steven says it’s a hard issue because there is a harm on both sides. The only way to make progress is by good faith negotiation. He is working with legislators in a state that are trying to do this (one LGBT. the other a conservative Christian). They both want to make this happen and are working well with each other. The template they’re working on would be something like this: if there are ample other providers, a Christian shop would have to maintain a list of alternatives to give to customers. (Noted perceived problem on Christian side has an element of being involved in the ceremony somehow, as opposed to just baking a cake.) But if they’re a unique provider or in a monopoly position, no one else within so many miles can do it, then the Christian bakers would have to suck it up and provide the service. They’re still working through it, but both legislators are very nervous about it, because their constituents are dug in and they don’t want compromise, nothing but total victory will be acceptable to them.

At the end of the evening we presented each speaker with a widow’s mite (a real, ancient one) as a token of appreciation for their taking the time to speak to us. And then we had baklava for dessert (hey, we’re Mormons after all, we’re not gonna skip dessert).

I think the general opinion (in which I share) was that it was a great event, possibly the finest one we’ve ever put on.

[1] Nicholas Miller is a lawyer and Professor of legal and religious history at Andrews University in Berrien Springs, Michigan, where he also directs the International Religious Liberty Institute. He is a graduate of Columbia University Law School, and received his PhD in history from the University of Notre Dame. He has litigated many church/state cases in state and federal courts, and appeared before the U.S. Supreme Court in the school funding case of Mitchell v. Helms. He is the author of numerous scholarly and professional articles, as well as a number of books. These include The Religious Roots of the First Amendment (Oxford University Press, 2012) and most recently 500 Years of Protestant Liberty: From Martin Luther to Modern Civil Rights (Pacific Press, forthcoming 2017).

[2] Steven T. Collis is chair of Holland & Hart LLP’s nationwide religious institutions and First Amendment practice group and an equity partner in its complex civil litigation and labor and employment practice groups. In state and federal trial and appellate courts, including the Supreme Court, he represents religious institutions, school districts, and traditional employers regarding a broad range of religious-related issues, including those arising under the Religious Freedom Restoration Act (RFRA); the Religious Land Use and Institutionalized Persons Act (RLUIPA); the Free Exercise, Free Speech, and Establishment Clauses of the Federal Constitution; their state analogues; tax exemptions; and other key legal doctrines specific to the intersection of religion and law. He is also an adjunct professor of law at the University of Denver Sturm College of Law, where he teaches religious liberty law. A graduate of the University of Michigan Law School, he publishes and speaks regularly on religious freedom for both academic and lay audiences. [As an aside, Steven was the only LDS participant on the panel.]

[3] Azam Nizamuddin is Adjunct Professor in the Department of Theology at Loyola University of Chicago where he teaches courses on Islamic thought and history. Mr. Nizamuddin is General Counsel with the American Trust Corporation (NAIT), and Chief Compliance Officer with Allied Asset Advisors. Mr. Nizamuddin also serves as President of the Muslim Bar Association of Chicago, the oldest bar association catering to the Muslim community. Mr. Nizamuddin has lectured extensively on Islamic theology and law and on Islamic civilization to churches, synagogues, civic organizations, and federal agencies across the country. After 9/11, he was invited to academic conferences in Denmark, Germany, India, Indonesia, Israel, Jordan, and Turkey on East-West relations and inter-religious dialogue.

Comments

  1. Aaron Brown says:

    Sounds awesome. Thanks for sharing.

    Aaron B

  2. Hunter says:

    Wow! Thanks for the report, Kevin. And congrats to the organizers. Sounds like they worked hard.

    Do you have any idea who the audience was made up of? Mostly JRCS members? All attorneys?

  3. This is great, Kevin. Thanks for sharing it. I wonder what it would take to get our local chapter to do something like this.

  4. Kevin Barney says:

    Hunter, there were some JRCLS members there, but they were definitely a minority. We sent the invitation out through interfaith channels some of our leaders have, such as the Islamic Center in Naperville, and that seemed to bear fruit.

  5. Kristine N says:

    Kevin–I have a question about Steven’s #3 point on religious liberty. I know I’ve read articles on this in passing but I’m not sure I understand what Scalia did exactly, or how that impacted the birth control case. Can you explain or link to an article that explains that point more fully?

  6. Kevin Barney says:
  7. Wish I’d been there. It sounds like a great collection of smart thoughtful people. (I expect I would have disagreed with a fair amount, but that makes it interesting and not social outcast land when in a group of lawyers.)
    What I find most interesting–and it sounds like there was plenty of attention in this discussion–is the challenges to mainstream Protestant standards. Whether it’s Sharia law, peyote use, LGBT discrimination (is it truly religious, or something else?), or Scientology (is it a religion?), our comfort with various concepts of religious freedom seems to be challenged.

  8. Thanks Kevin. We’ve held similar meetings in my local JRCLS. FWIW, my best solution for the ‘wedding cake’ challenge to apply an endorsement/speech test. It doesn’t solve every problem, but it does provide a reasonable general framework. In a nutshell, the test outlaws religious-based objections for businesses unless the nature of the product/service offered amounts to forced speech or would be viewed by a neutral observer as an endorsement.

    As an example, cakes are not themselves speech. So a cake-maker cannot object to providing a cake on the basis of religious objection. However, the cake-maker can object to writing messages on the cake that violate her beliefs (e.g, ‘Happy Anniversary Bill and Ted’ or ‘KKK all the way’). And she can object to placing objects on the cake that would amount to endorsing speech (e.g. two grooms). The same principle would prevent florists from objecting to providing bouquets, but they could object to messages attached to the flowers. A photographer pretty much can object for all his services because photographs amount to speech.

  9. Dave K: Not to take up your endorsement/speech test, but just as a point of reference, the First Amendment Speech argument was made in the Elane Photography case in New Mexico, (The brief states: “The photographs and picture books Elaine Huguenin creates when photographing weddings are her artistic expressions . . . She is the person speaking through those images.”)
    The argument was rejected by the New Mexico Supreme Court. and the U.S. Supreme Court declined review. As a result, I would qualify your last sentence, which I gather is how you would hold, but not how the courts have ruled.