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The Political Valence of Religious Liberty

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 Allan R. Tessler Dean of the Cornell Law School. He is the author of numerous books and articles on the subjects of property and land use law.



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It seems to me that the clinic is interested in representing one type of believer -- a conservative one, mainly. That is surely odd, and is the opposite of religious freedom -- that is promoting sectarian oppression. But is this perhaps mainly about a university seeing dollar signs and a PR opportunity?

Let's start the discussion with something upon which we can all agree. I propose: The Sabbath rest.

So, is Stanford angling to become Liberty University - West?

Interesting post. I wonder whether the political valence of support for and opposition to religious liberty is changing. In the past, at least in the legal academy, it was the case that one could hold a strong view of both religion clauses and fit fairly comfortably within the academic mainstream. One would, so to speak, purchase one's bona fides to advocate for a strong reading of the Free Exercise Clause by advocating a strong reading of the Establishment Clause. A number of highly respected scholars who first achieved prominence in past periods held to something like this view. But I am uncertain -- maybe even doubtful -- that it reflects the current alignments of politics and methods of constitutional interpretation. For a related view expressing similar doubts, here's a post by Nelson Tebbe: And here's one I did a couple of years ago on this subject:

Don't forget that Stanford is also home to the Hoover Institute. Wanna bet that the HU is more than a little bit behind this "religious freedom clinic?"

Perhaps Stanford sees the need to start a dialogue between the most conservative elements in the country and the most liberal ones. The shouting needs to stop.

Hilarious post at First Things -- it's all the New York Times fault! of course the NYT bankrolled the rightwingers behind this rightwing project so they could write that rightwingers are behind it...Richard Hofstadter, we need you more than ever.

Marc -- I'm not sure. I don't know that I agree with Nelson that we are seeing a realignment in the academy. There are a few prominent people arguing that religion is not special (esp. Schragger and Schwartzman), but there were a few prominent people arguing the same thing a decade ago (Eisgruber and Sager). I'm not sure I see a consensus of liberal constitutional scholars coalescing around that position. On the political side, there are partisan disagreements now about some borderline free exercise claims (the contraception mandate and some issues related to recognition of gay marriage), but there seems to me to be a bipartisan commitment to broad free exercise rights. It seems to me that there have been efforts on the right to make religious freedom an ideological issue (accusing Obama of a war on religion, etc.), but i don't think these have been successful in creating a realignment on the issue. The way I see it, there are lots of religious people and lots of people who care about religious liberty on both the left and the right.

This just out @ RNS today. Talk about a BIASED titling of sample categories! What are "Notional Christians?" And where is the breakout of Mainstream Protestants, Catholics and other non-Evangelical non-born again Christians?

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