Tag: Supreme Court

Religious Freedom and “Deviant” Religious Groups

The Sunday before Thanksgiving was my 64th birthday.

It was also the 40th anniversary of the Jonestown massacre. Every five years or so, the events of my birthday and Jonestown become as inextricably linked as they were when I turned 24. Then a recent college graduate in my first semester of graduate school in sociology with a keen interest in religion, Jonestown shook me to my core.

Looking back with the vantage point of history, it’s easy to identify Jim Jones as a cult leader. We know that this group didn’t fit our normal visions of religious expression. After all, the followers committed mass suicide by drinking tainted kool-aid. (It’s a remarkable thing that “drinking the kool-aid” has become part of our lexicon given its macabre origins.)

Jim Jones

But Jim Jones began his ministry in a Methodist church on the Southside of my hometown of Indianapolis. It is true that his views tended to liberal politics as he referred to himself as a socialist and communist.

 

Those views, however much out of the mainstream, are protected by the first amendment to the constitution. I am by no means trying to excuse what happened in Guyana and many books have been written on how Jones’ sense of paranoia led to increasingly aberrant behavior. But that feeling that “they” were out to get him should provide warnings to those who traffic in stoking perceptions of religious discrimination.

I’ve been listening to Ruth Graham’s excellent podcast Standoff exploring the Ruby Ridge standoff between the FBI and Randy Weaver. The first episode details how the Weavers were influenced by the Church of Jesus Christ – Christian, a group that infused Aryan white supremacist views into apocalyptic scriptural passages. The ATF did go after Randy Weaver because of illegal arms sales (likely involving entrapment), but the precursor for the standoff is related to their religious beliefs. When the powers of the federal government get involved, killing Randy’s wife and son, it serves as a reinforcement of that belief system.

Back in August I attended the annual meeting of the Association for the Sociology of Religion. One session looked back at the 25th anniversary of the Branch Davidian Conflict in Waco, TX. The three panelists were all involved in either the actual standoff or in explorations immediately after the fact. Waco follows a similar pattern to the other two events. A set of beliefs, admittedly obscure and not broadly shared, led the group to pull together. Federal officials act on poor information and try to intervene, leading to a standoff that ends tragically.

This past weekend, Franklin Graham explained that white evangelicals like him support President Trump because he “defends the Christian faith:”

He also insisted his allegiance was not automatically for the Republican Party, stating that he backs politicians that “support the Christian faith whether they’re Democrats, Republicans, Independents. Politicians that are going to guarantee my freedom of worship. And I appreciate the president has appointed now two conservative judges that are going to defend religious freedom, so amen to that.”

Herein lies the constitutional problem. The first amendment doesn’t call for the defense of the Christian faith. It calls for the protection of free expression of religion and opposes the official establishment of any particular religious group.

A key moment in religious freedom jurisprudence occurred in 1944 in United States v. Ballard. The Ballards were a husband and wife team that set up a church as a means to collect money, raising over $3 million. The lower court argued that the Ballards didn’t really hold a good faith belief in what they were espousing and got a fraud conviction. This was overturned on appeal in the US Court of Appeals. The state of California appealed that ruling to the Supreme Court. By a decision of 5-4, the Supreme Court agreed with the appellate court. Justice William Douglas, writing the majority opinion, argued:

The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.

This is the birth of the idea of “sincerely held religious beliefs”. The Supreme Court refused to put itself in the position of “finding truth or falsity”. It is worth noting that none of the dissenters were willing to take up the “truth” question either. Three of the justices argued that illegal actions could not be masked under religious beliefs. The remaining justice, Robert Jackson, saw any enforcement of law over religion as problematic and raised potential for religious persecution. He then challenged the notion of sincerity:

If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand, and are almost certain not to believe, him.

This brings me back to Jim Jones, Randy Weaver, and David Koresh. It is difficult for those outside the religious group to evaluate the sincerity of the belief system involved. That’s why other laws are the means of enforcement. It is a matter of attempting to separate the religious beliefs from the expectations of shared adherence to laws.

So the Masterpiece Cakeshop and Hobby Lobby decisions represent the conflict that arises between shared legal standards and closely held religious beliefs. Following Ballard, the court has tended to side with the religious beliefs because it has no lever with which to do anything else.

But it is vitally important to remember that religious freedom does not work as a particularized right. It is as relevant to evangelical Christians as it is to White separatists, to communal apocalyptic groups, to Pastafarians, and to those with no faith whatsoever.

My very first publication was a 1980 book review of James Richardson’s Conversion Careers: In and Out of  the New Religious Movements. As i remember the book, the takeaway was the thing that separated these “deviant” religious groups from established religious groups revolved around the social acceptance denied them.  When one’s group is seen as outside the mainstream, it’s harder for people to understand them as a legitimate religious group.

That may be true sociologically but it remains an open question for a Supreme Court that simultaneously upholds religious expression while avoiding questions of validity.

 

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Christian Universities After the Supreme Court Decision on Same Sex Marriage

en.wikipedia.org
en.wikipedia.org

Three disclaimers before I dive in: 1) This blog has always been my own thinking and in no way represents the positions or policies of any of the institutions I’ve served; 2) I am not arguing for or against same-sex marriage from religious grounds; 3) my attempts here are simply to explore the political and ethical responses Christian Universities may need to consider if the Supreme Court expands same-sex marriage rights nationally.

Sometime in the next three weeks, the Supreme Court will hand down a key decision on marriage in America. There are actually four separate cases being considered, organized around two questions:

Issue: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? (http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/)

The first question involves the Michigan definition of marriage as between one man and one woman. The plaintiffs argue that this violates the 14th amendment rights of equal treatment because they are gay. The second question stems from Tennessee’s position that they wouldn’t recognize same-sex marriages authorized in other states.

I listened to the oral arguments in April (available here and here). None of the attorneys arguing made an airtight case and faced significant questioning and some skepticism from the Justices, especially on issue one. It seems to me that the Justices correctly wrestled with what I’d call the “legacy question” — can the court simply adopt a new definition of marriage when, as many argued, such an idea as same-sex marriage wasn’t recognized by any governmental authority prior to this century. They rejected attempts to tie marriage to procreation or to link same-sex rights to civil rights 50 years earlier. But it seemed like the legacy issue remained — they did not want to be known as the Court that changed marriage forever.

The second question, the one about recognition, seemed easier for the Justices to see their way through. There is a long history of jurisprudence on recognizing state sovereignty as it affects those who move from one state to another. Key questions to me involved how states accept varying definitions of the age of marriage and don’t differentiate just because the woman was “underage” according to the new state. Since 1823, the Court has consistently held the right of free movement and limited the ability of states to supersede the rights of their neighboring states.

This is a long introduction, but it’s important to set the stage for what I think is going to happen. After hearing the arguments, it suddenly dawned on me that the Court’s most pragmatic solution is to side with Michigan on question one (affirming the vote of the people) while siding with the plaintiffs in Tennessee (requiring states to recognize same-sex marriages from other states). The practical impact of this would be to enable same-sex couples to marry in affirming states and then move back to their home state to live. In essence, the second question nullifies the first until such time that states with same-sex marriage bans vote to overturn them (which, if polling data is correct, is likely to happen within a couple of elections).

So if I’m right (and I’m pretty sure about question two), Christian Universities will find themselves struggling to know how to respond.

One option is to claim a religious exemption by demonstrating that support of one-man, one-woman marriage is central to their operation. I’m not sure that will survive legal challenge, especially as many Christian institutions have made space for divorce and remarriage. Besides, this is an argument about employees more than about students. Making the “essential” argument would be difficult, force the institution into dogmatic language inconsistent with its key ethos, and open the door to claims of hypocrisy or homophobia.

If Christian Universities take the chance to seriously engage the question, what are the issues that need attention?

1. I think the key issue is to draw a bright line around marriage. When it comes to student behavior, there should be clear proscriptions against premarital sex. There is no need to separate same-sex behavior as a special class of activity. If a student is married, sexual behavior is permitted — otherwise not. Yes, this raises the possibility that a same-sex couple attending the university is engaging in sexual behavior but we can allow state law to take precedence in this matter. On a pragmatic note, with the number of commuters and non-traditional students in our institutions, it’s impossible to even know who is in a same-sex marriage. (Unless we were to make that a question on the admission application, which would face significant legal challenge.)

2. Students will want an institutional space for conversations about sexual orientation. One of the interesting developments over the weekend involved the Madeleine L’Engle’s family foundation giving $5,000 to OneWheaton, an unofficial group of current and former Wheaton students who are gay or gay allied. The money will be used to offset costs of a conference this fall. Of particular note, however, is that the gift was unsolicited. This was an attempt by an outside group (well connected within evangelical circles) to have an impact. In his story for Religion News Service, Jonathan Merritt quoted L’Engle’s grandaughter who chairs the foundation:

My grandmother had a long and deep relationship with Wheaton College and its English Department, and she was enriched by some of the vigorous debates she had with faculty and students there. I believe that the kinds of conversations OneWheaton is seeking to have reflect where she would be if she were still here.

I fully expect other groups to follow the L’Engle foundation’s lead in years to come. Such action will strengthen the voice of the One college groups. Rather than see these as competing yet unofficial voices within the institution, Christian Universities will be well suited to find ways of making them official parts of their student organization universe.

This will lead to a third issue.

3. Christian Universities will need to affirm that there are legitimate differences of opinion within the Christians making up their community. This includes faculty, staff, students, trustees, parents, and alumni. This doesn’t mean that Christian Universities have to abandon their commitment to biblical authority. But it does require them to acknowledge that there are community members who are in complete agreement with institutional mission, confess as Christians, and see loving others (regardless of their position on same-sex marriage) as an expression of both. We will need to avoid the temptation to “explain away” the difference of opinion on sexuality by casting those who are affirming same-sex orientation and relationship (or, at least, not condemning) as somehow “not Christian”. This was what drew WorldVision to their short-lived action last year.

This week’s news of Tony Campolo and David Neff is an illustration in point. They both said that it was time for the evangelical church to move toward affirming same-sex relationships. On the one hand, Campolo’s move wasn’t surprising — he’s been heading this direction for years with help from his wife Peggy. Neff, the former editor of Christianity Today, seemed to catch more people by surprise; so much so that the current editor wrote a response that included the following:

We at CT are sorry when fellow evangelicals modify their views to accord with the current secular thinking on this matter. And we’ll continue to be sorry, because over the next many years, there will be other evangelicals who similarly reverse themselves on sexual ethics (emphasis mine).

This notion that evangelicals don’t reach difficult positions on their own is going to be hard to sustain. Far better to engage the serious discussion among colleagues in Christ. The implication given here is that “real evangelicals” know where they stand yet folks like Campolo and Neff have only been interested in aligning with secular thinking.

The diversity of thought on this issue is real. As the Public Religion Research Institute found last year, 43% of millennial evangelicals support same-sex marriage. When we consider the correlation between educational level and support of same-sex marriage, I’d imagine the data for Christian University students to be closer to 50% in favor and 50% opposed. This is a legitimate starting place for our conversations. Data has also consistently shown that an unwillingness to address these questions is one of the prime factors in millennial drain from the church. Consider this quote from the PRRI study:

“There are significant generational divisions among some religious groups regarding the effect church stances on gay and lesbian issues have on young people. A majority (55%) of white evangelical Protestant Millennials believe religious groups are turning off young people because they are being too judgmental about gay and lesbian issues.“

I would argue that it’s not judgmentalism that is the challenge but the inability to have real conversations.

4. We need to have a real conversation about same-sex marriages

Not in the abstract but in the specific. Given the limitations of human resource law on what one can ask in an interview about a candidate’s family situation, it is quite likely that a Christian University will find out that the top candidate for that vacancy, a committed Christian with an excellent teaching and scholarly record and a love for students, happens to be legally married to another man. In fact, I think such a discovery is right around the corner.

Or, as another colleague pointed out, those two single friends on the staff will go off and get married one weekend. This is not a potential situation but one that is quite likely for a number of reasons.

There are serious EEOC legal issues here. I believe the Christian Universities can make a positive affirmation about why heterosexual marriages are the only ones they support in hiring but much more work is needed to make that case. Certainly something more robust than “we don’t believe in that”. There is likely a clear educational case that makes such a hiring distinction essential to the ability of the institution to accomplish its goals but that must be clearly specified. Otherwise, the governmental intrusion on religious institutions that many evangelicals fear may actually come about.

My thinking on these matters has been strongly influenced by the work of John Inazu. John is a law professor at Washington University Saint Louis. He has a book coming out on his topic of Confident Pluralism. Here is an extended excerpt from the introduction he shared on twitter:

Confident Pluralism takes both confidence and pluralism seriously. Confidence without pluralism misses the reality of politics. It suppresses difference, sometimes violently. Pluralism without confidence misses the reality of people. It ignores or trivializes our stark differences for the sake of feigned agreement and false unity. Confident Pluralism allows genuine difference to coexist without suppressing or minimizing our firmly held convictions. We can embrace pluralism precisely because we are confident in our own beliefs, and in the groups and institutions that sustain them.

This confidence in our own convictions reinforces our differences and increases the risk of friction. For this reason, Confident Pluralism differs from a number of other proposals that seek consensus across difference, including various strands of Rawlsian liberalism and, before that, mid-twentieth century liberalism. It comes much closer to law professor Abner Greene’s claim that consensus proposals seek a “false solace” in attempting to overcome difference and “we do better by recognizing difference as something we can’t get past.” Confident Pluralism does not suppress or ignore conflict—it invites it.

At the same time, Confident Pluralism recognizes that we have better and worse ways to live out our own confidence and to negotiate the pluralism around us. Confident Pluralism should not be misread as the rejection of any consensus at all—it is not an invitation to anarchy. Like any serious proposal of how to live together in society, it draws upon certain shared resources and aspirations. We retain some modest unity in our diversity (emphasis his).

Whatever the Supreme Court determines in the next few weeks, we in Christian Universities will need to work our way through what it means to exhibit Confident Pluralism. We will regularly interact with those who do not share our values (including some in our own institutions).

But we need to do the hard work of really focusing on key issues, explaining those issues to any interested parties, and distinguishing the essential elements from those that are simply differences.

The future of Christian Higher education depends on our ability to engage this task.

Truthiness, Belief, and Story: Reflections on Hobby Lobby Decision

I wanted to wait to comment on the Supreme Court decision regarding Hobby Lobby (Burwell v Hobby Lobby Stores, Inc.) until I had a chance to review the actual decision after returning from my weekend in Chicago (a delightful Choral Festival at Fourth Presbyterian). In many ways, the outcome was fairly predictable given the Court’s prior position in Citizens United. Having granted bill of rights protections to corporations, it was likely that the conservative majority would be consistent. [In spite of some of what I’ve read, this wasn’t a First Amendment case on free expression but relied instead on the Religious Freedom Restoration Act (RFRA) of 1993.]

Supreme CourtWhen I saw tweets that Justice Alito had written for the majority, it was also clear how the argument would be structured. Others have observed the sharp distinctions between the arguments of the majority and the dissent. It was almost as if they heard two different cases since their rhetorical focus seemed so different. As I did a summary read on the decision yesterday, I came away with three critical reflections.

 1. The Central Claim was one of Truthiness

Stephen Colbert introduced the idea of “truthiness” the night he launched his satirical news show. His point was the facts didn’t matter because he depended on his gut to tell him what was true. It was the Merriam Webster “word of the year” for 2006, beating out the word “google”. If something feels a certain way, then that’s what matters.

At the heart of the dispute over the contraceptive mandate is a concern over four forms of contraceptives that the plaintiffs “believed” caused abortions. The mandate is actually in implementation language written by the HHS in response to amendment to the Affordable Care Act dealing with women’s preventative health. [The dissent makes clear than a religious exemption amendment failed during the ACA debate.] As the case was moving its way through the courts, I kept waiting for someone to address the central belief. There are many news reports that attempt to explore the claim that the four types (mainly IUDs and “morning after pills”) cause abortion rather than preventing ovulation. While not conclusive, my reading of the science leans toward the ovulation argument, but I’m not a definitive source. It seemed to me that someone would need to address this along the way.

I was quietly stunned in reading the oral arguments that both sides emphasized that the plaintiffs “sincerely believed” that the methods caused abortions which was a violation of their religious beliefs. But nobody addressed the scientific claim. I remember reading that social science data on young girls and dolls was an important part of the Brown v. Board deliberation, so it seemed appropriate.

This is important because Justice Alito based part of his support on the idea that there were less restrictive options available. The federal government could pay for those disputed contraceptive methods. But one can’t do so without addressing the science. If it turns out that these methods are, in fact, abortifacients, the Hyde Amendment and the Stupak amendment to the ACA would preclude any federal funds being used.  It’s stunning that Alito would suggest such a strategy unless he believed the science was on the ovulation side. [He does argue that the government has a legitimate interest in providing all 20 forms of contraception.]

2. The Nature of Belief

There are volumes written in theology, sociology, psychology, and philosophy on the nature of belief. The RFRA was written to protect a religious group from laws that infringe on their first amendment protections. The Wikipedia description quotes the act as follows: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The Hobby Lobby argument is that their belief that “life begins at conception” is a religious belief and that the mandate infringes on that belief with regard to the four contested contraception methods. Personally, I struggle with the application of language on “free exercise” of religion with a particular moral belief. There is a big difference between Native American peyote practice (the case behind the RFRA) and a specific belief.

There are Christians firmly committed to Young Earth Creationism or that women should not have authority over men. Do these positions constitute the central place of religious belief? It’s not the same as being at risk for believing that Christ is the Son of God and Redeemer. For a society that seems to adopt a smorgasbord approach to religious belief [the Catholic Bishops just accepted the fact that 95% of Catholics disagree with the official position on birth control], how do we navigate if every set of beliefs is privileged by law?

3. Whose Story?

The Court determined that “closely held corporations” were protected by the RFRA. In other words, corporations that form around family enterprises (but not publicly traded companies) could have religious positions that must be considered. But as many have observed, Hobby Lobby as a company doesn’t appear to be organized around religious ends (except for being closed on Sunday). Many have pointed out that there are practices the company engages in that are hard to characterize as “Christian” (e.g., Jonathan Merritt’s piece in The Week).

But the court’s argument seems to be that the values of the Green family extend to the rest of the corporation. This strikes me as problematic on a number of levels. We often attempt to distinguish one’s personal commitments from one’s corporate stance. This was the argument made around the Chick-fil-a CEO last year. But if one’s beliefs and story extend over all else, then how do we make decisions?

This struck me the other night when I was watching Rising Star on ABC. I don’t normally watch these music competition shows, butRising Star a choir member’s niece was on when I was in Chicago so we all watched it together. What struck me was that the judges seemed less focused on musical ability or technique as on the back story. So the baseball pitcher who was blinded by a hit ball could now try to sing. The focus was on how much he’d overcome and what dedication he showed. People were commended on how they “brought it”, overcame nerves, or how their stories touched the judges.

There’s a parallel in a focus on stories that show dedication, sincerity, and Christian commitment within the political sphere. The argument becomes about the ways in which the Greens live out their commitments of faith. But our stories are part of what got us to the current point of discussion not the be-all-and-end-all. And we need to figure out how our stories intersect with the stories of others.

All of the justices were privileging story but they were privileging different stories. The majority focused on the Greens and the dissent focused on female employees of Hobby Lobby.

At the end of the day, I can affirm Hobby Lobby’s interest in pursuing legal remedies available to them but I keep thinking that there was a stronger opportunity for a faith witness in not insisting on their way.

These reflections can no doubt be challenged and I may modify my own thinking over time. For now, it seems like a decision that left a lot unexplored. We will no doubt be revisiting this case and others like it in the future.