The Political Valence of Religious Liberty
Eduardo Moisés Peñalver January 22, 2013 - 10:52pm
This article in today's Times -- announcing a religious freedom clinic at Stanford Law School (co-sponsored with the Templeton Foundation and the Becket fund) -- seriously rubbed me the wrong way. I don't know whether it's the fault of the Times's reporter or the Stanford Law School, or both. I suspect both. For starters, Stanford's clinical director Lawrence Marshall characterizing a "religious freedom" clinic as a clinic for "[t]he 47 percent of the people who voted for Mitt Romney" is just bizarre. I hope he was misquoted out of context.From that inauspicious start, the article relentlessly and uncritically pushes the frame that religious freedom claims (by which it means accommodation claims based on the Free Exercise Clause) are the domain of religious believers (about whose rights, it suggests, only conservatives give a damn) whereas establishment clause claims are brought by (presumably liberal) nonbelievers seeking to purge the public square of religious faith. The article quotes a series of conservative legal scholars, all of whom praise the clinic. There is no evidence that the reporter asked any liberal religion law scholars what they thought of it, though I suspect many would have been equally supportive of the idea. (To be clear, I think a religious freedom clinic is a great idea, though I have some doubts about Stanford's particular execution of this idea for reasons I mention below.) Instead, the reporter quotes a third year law student at Stanford, who assures us that "liberal students . . . are concerned."I'm so old, I can remember the year 1990, when the Supreme Court dramatically narrowed the scope of the Free Exercise Clause in Employment Division v. Smith in an opinion by (if my memory serves me right) non-liberal, and believing Catholic, Justice Antonin Scalia, with the votes of equally non-liberal Chief Justice Rehnquist and the only sometimes liberal Anthony Kennedy, over the objection of the decidedly non-conservative Justices Brennan, Blackmun and Marshall. I can even recall how, in 1993, the Religious Freedom Restoration Act (without which the various challenges to the HHS contraception mandate would not have a legal leg to stand on) won the support of liberal interest groups like the ACLU and passed the House of Representatives with unanimous support and the Senate with only three nay votes (both of which accomplishments, I assume, required the votes of some non-conservatives who were somehow concerned about the free exercise of religion).Lending support to the notion that the problem was not entirely with the Times reporter is the quote attributed to the clinic's director, former Ave Maria law professor James Sonne:
In framing our docket, we decided we would represent the believers, said James A. Sonne, the clinics founding director, explaining that the believers, rather than governments, were the ones in need of student lawyers to defend them. Our job is religious liberty rather than freedom from religion.
This is just confusing (have governments asked for help from the clinic to protect people's freedom from religion? are nonbelievers not entitled to the services of a clinic dedicated to religious liberty?). Contrasting nonbelievers' "freedom from religion" (which, I assume, refers to establishment claims) with believers' "religious liberty" claims seems to me to be an unhelpful way to think about the structure of the religion clauses and the nature of religious freedom. Surely nonbelievers have an interest in (and claims to) religious liberty. And many establishment-type claims seeking "freedom from religion" are not brought by unbelievers seeking to be free from religion but rather by religious people (often local religious minorities or dissenters) seeking to prevent the state throwing its weight behind the side of a particular religious perspective, something that has implications for the believers' own religious freedom. (Consider this story, for example, about evangelicals in California who believe teaching yoga in their public schools constitutes an unlawful establishment of religion.)This is exactly why Douglas Laycock was surely correct when he said (in one of the only lines in the article that did not make me want to guzzle antifreeze this morning at 7 when I read it) that he thought the clinic should not be called the religious freedom clinic but instead the "free exercise clinic." Equating religious freedom with believers' (and only believers') free exercise accommodation claims, as the Stanford clinic seems to do, reflects (in my opinion) a misguided and unbalanced conception of what religious freedom entails.
About the Author
Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.