Government Partnerships With Faith-based Service Providers: The State of the Law

Rapid change and significant uncertainty are the most noteworthy features of the legal environment for participation by faith-based organizations ("FBOs") in government-financed socialservices. Developments in federal constitutional law, statutorily based federal programs, and the administrative environment have altered the legal circumstances in which such opportunities mayappear. In addition, the body of law (federal, state, and local) concerning the employment relation, an emerging focus on state constitutional law, and the existing pattern of contractual relations between government entities and FBOs, contribute to an atmosphere of legal complexity surrounding this field. These patterns of change and uncertainty play a crucial role in the decisions of FBOs on the value and risks involved in participating in such programs, as well as in decisions by government agencies concerning whether and how to undertake such programs.The topics included are 1) the Establishment Clause of the First Amendment to the U.S. constitution, including recent cases involving the application of that Clause to FBOs in service partnerships with government; 2) state constitutional law as a source of impediments to state relationships with FBOs, and federal constitutional challenges to such impediments; 3) the law of employment discrimination – federal, state, and local – as it applies to FBOs in such partnerships; 4) federal programs that explicitly invite participation by FBOs; and 5) state social service contracts with FBOs, and the presence or absence of religionspecific provisions in such contracts

Historic Preservation Grants To Houses Of Workship: A Case Study in the Survival of Separationism

Many states have historic preservation regulations that, as applied to properties owned by religious entities, have been challenged on free exercise grounds. Historic preservation programs, however, also include government grants for preservation efforts, and no court has yet been asked to rule on the permissibility of such grants. This Article analyzes the existing Supreme Court precedent on state financial support for the construction or preservation of places of worship or religious teaching. After briefly reviewing the movement from Separationists to Neutralism, this Article collects and appraises materials on historic preservation, which reveal a remarkable degree of disparity in preservation policies, as various levels of government struggle with changes in the relevant law. This Article concludes by invoking a principle of Religion Clause symmetry—what the government may regulate it may also subsidize—and by suggesting that the religionspecific line between permissible and impermissible subsidy (and regulation) should be drawn between the exteriors and interiors of houses of worship

The Cross at College: Accommodation and Acknowledgment of Religion at Public Universities

In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college\u27s Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college\u27s historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross was returned to the side wall of the chapel, in a display case marked with a historical notation. The controversy over the display of the Wren Chapel Cross provides a rich opportunity to explore the extent to which state-controlled institutions of higher learning can respond to the religious needs of students or commemorate the religious heritage of the institution. The paper briefly traces the history of the College from its original charter by the English Crown its present day public status. The paper also develops the relevant history of the Wren Chapel and the controversial cross. The paper argues that the competing arguments in this dispute over how the cross injured students represent far too thin a framework for exploring the relevant questions. Instead, the paper argues, the only possible justifications for a public college manifesting a religious voice are theories of accommodation and acknowledgment of religion. The theory of accommodation can support the provision of a chapel for student worship, but cannot justify the central placement of a cross in the chapel as a default configuration. The paper breaks down the theory of acknowledgment into three separate strands - acknowledgment as an accurate rendering of history, acknowledgment as an expression of reverence, and acknowledgment as a response to secular elements of present culture. The paper unpacks the three theories, and tests the dueling claims about the placement of the Wren Chapel cross against each. The lessons to be drawn from this controversy should be illuminating for all public universities in their consideration of religious displays on campus

#MeToo Meets the Ministerial Exception: Sexual Harassment Claims by Clergy and the First Amendment\u27s Religion Clauses

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court unanimously held that the Religion Clauses of the First Amendment create a “ministerial exception” to certain employment laws. The ministerial exception bars claims by clergy of wrongful dismissal by religious institutions. In the years before Hosanna-Tabor, however, courts had ruled in four prominent decisions – two state, and two federal – that suits by clergy for sexual harassmentbased on a pervasively hostile environment could go forward, notwithstanding the ministerial exception. The rise of the #MeToo movement invites new and more detailed consideration of the tension between the policies behind sexual harassment law and the constitutional values protected by the ministerial exception.Part I describes the contours of the ministerial exception, explains its constitutional provenance, and highlights the issues left open by Hosanna-Tabor. Part II addresses relevant developments in the law of sexual harassment, from the pioneering work of Professor Catherine MacKinnon, through and including the Supreme Court’s decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.Part III explores the leading judicial opinions on the relationship between sexual harassment law and the ministerial exception. These include the germinal state court decisions in Black v. Snyder (Minnesota) and McKelvey v. Pierce (New Jersey), and the path breaking 9th Circuit decisions in Bollard v. California Province of the Society of Jesus, and Elvig v. Calvin Presbyterian Church. In the law that has emerged, the ministerial exception bars adverse job action claims by clergy but does not bar hostile environment claims. That brief statement, however, masks the analytical complexities and constitutional concerns arising from the interplay between harassment law and the ministerial exception. The sources of tension include the affirmative defenses, requiring employer-created mechanisms for reasonable prevention and correction in sexual harassment cases, as well as matters of discovery and choice of remedies.Part IV applies our theoretical and doctrinal insights to the major questions raised by this interplay. We explain why the ministerial exception is constitutionally sound, but nevertheless should not bar damage claims for pervasive, hostile environments based on sex. We offer a tort-based theory of harm as the underpinning of hostile environment doctrine; analyze the tenuous connection between religious belief and sexual harassment of clergy; and unpack constitutional questions of entanglement between church and state that may arise when religious institutions face hostile environment lawsuits. Our analysis should be of interest to scholars of employment law and the Religion Clauses, lawyers litigating such cases, and judges who must decide them

Federalism and Faith

Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court\u27s decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy. This paper offers a focused (re)consideration of federalism and faith. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part II confronts the constitutional developments that emerged from the Civil War and Reconstruction, and traces the Reconstruction story into the 20th century, when the Supreme Court first applied the Religion Clauses to the states. Part III then briskly chronicles the rise of Separationist interpretations of both Religion Clauses, and the incomplete recession to narrow interpretations of the Religion Clauses that mark the past several decades. Part IV represents our contextualized effort to add value to the conversation about faith and federalism. State discretion over religion policy is a function of two considerations - the substantive content of the First Amendment, and the extent to which the First Amendment binds the states. In order to test a series of intuitions about faith and federalism, we analyze in Part IV a series of three problems - one in which the state pursues Separationist goals, and the other two in which the state appears to be promoting or aiding religion. Part IV considers these problems within three, distinct regimes of federalism: 1) the current regime of full incorporation of the First Amendment\u27s Religion Clauses; 2) a regime in which the states remain bound by the Free Exercise Clause but are liberated from the Establishment Clause; and 3) an imagined regime of partial incorporation, designed to maintain core non-Establishment norms while explicitly expanding state discretion in the periphery of non-Establishment. We believe that exploration of these problems, and of contrasting regimes of state discretion, will cast considerable light on what is at stake in the battle over federalism and faith

The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia

This paper addresses the decision in Fulton v. City of Philadelphia (June 17, 2021), in which a unanimous Supreme Court upheld a claim under the First Amendment’s Free Exercise Clause by Catholic Social Services (CSS) against the City. CSS had objected on religious grounds to screening same-sex married couples as prospective foster parents, despite a provision in its contract with the City that prohibited such discrimination. Every Justice voted to uphold the Free Exercise Claim. Only three Justices, however, supported the overruling of the Court’s highly controversial decision in Employment Division v. Smith (1990), which insulated religion-neutral, generally applicable policies from free exercise exemption claims. Three Justices expressed reservations about that question, and three others remained entirely silent about it. Smith endures. Part I of the paper focuses on the veneer of unanimity in Fulton. Unlike in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), in which the Court’s unanimity reflected a commitment to deep and abiding church-state principles, the unanimity in Fulton is a pretext, and a product of radical uncertainty about the future of free exercise principles. Part II of the paper analyzes the thickness of the threads by which the Smith decision hangs. Part II.A. discusses the overwhelming hostility to Smith—not shared by us – among concerned citizens, elected officials, academics, and many judges over the past thirty years. Part II.B. criticizes Justice Alito’s lengthy opinion, calling for Smith to be overruled. He is wrong in his effort to make the law from 1963-1990 the centerpiece of Free Exercise jurisprudence. His view of the text and history of the Free Exercise Clause is also wrong, because he assumes that the constitutional concept of free exercise of religion covered all religiously motivated action. As his sources show, “free exercise of religion” in the relevant historical period encompassed only modes of worship and religious belief. Part II. C. analyzes the consequences of Alito’s overbroad conception of free exercise, and explains why these consequences drove the Smith decision, as well as the reluctance of Justices Barrett, Kavanaugh, and Breyer to overturn Smith. Part II.D. analyzes the Court’s recent attempts to narrow the concept of general applicability in the Covid-19 cases about restrictions on gathering for worship, and in Fulton itself. These moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites. The authors are both affiliated with the George Washington University. Ira C. Lupu is the F. Elwood & Eleanor Davis Professor Emeritus of Law; Robert W. Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion

Same-Sex Family Equality and Religious Freedom

In the spring of 2009, the legislatures of Connecticut, Maine, New Hampshire, and Vermont became the first in the U.S. to enact laws recognizing the legality of same-sex civil marriage. The legislation in all four states included provisions designed to protect the freedom of clergy and religious communities that do not want to recognize same-sex marriage. The legislation in several of the states also included provisions designed to insulate religious organizations from obligations that might arise from the legalization of same-sex marriage – for example, with respect to adoption or the provision of housing to married couples. Despite academic and political prodding, however, none of the states included provisions designed to exempt public employees, or private vendors in the wedding industry, from pre-existing legal obligations to serve without regard to the same-sex character of a marriage or family.This paper develops a typology of conflict between same-sex marriage and religious freedom, and builds on that typology to analyze the issues raised by this new legislation. In particular, the paper defends constitutionally distinctive freedoms for clergy and houses of worship with respect to the celebration of marriages; analyzes and critiques proposals that would allow public employees and private vendors to assert conscientious objections to serving same-sex couples; and assesses the circumstances in which religious entities, including religious charities and educational institutions, should be obligated to serve same-sex families on equal terms

The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School V. EEOC

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock. This paper illuminates the result, reasoning, and unanimity in Hosanna-Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical questions. Part I examines why unanimity on the Supreme Court seemed highly improbable. Other divisions on the Court in Religion Clause cases, the brooding omnipresence of Employment Division v. Smith, and the persistent feminist critique of the ministerial exception all suggested that complete agreement within the Court was unlikely. Part II focuses on the key features of Chief Justice Roberts’ opinion for the Court in Hosanna- Tabor, including the central question of which Religion Clause is doing the primary work. Part III offers our explanation and defense of the exception’s jurisprudential foundation, and shows in detail how the courts – before and after Hosanna-Tabor – have steadfastly maintained that foundation and its relevant boundaries. Part IV highlights the intense and continued division within the academy on the meaning and correctness of Hosanna-Tabor. Part IV A. analyzes the work of “the Expanders,” who see Hosanna-Tabor as a significant sign that the First Amendment protects a broad freedom of religious entities to resist general regulation. Part IV B. focuses on “the Re-Rationalizers,” who seek to disconnect Hosanna-Tabor from religionspecific norms, and ground the ministerial exception in the freedom of association. Part IV C. turns to “the Dissenters,” who argue that the ministerial exception is not required by the Constitution and is profoundly misguided. Whether designed to build up the decision or tear it down, the scholars’ overstated claims about Hosanna-Tabor may resonate within the culture wars, but have no foundation in the governing law

Religious Exemptions and the Limited Relevance of Corporate Identity

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions. This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities enjoy a distinctive set of rights. Instead, the relevant limitation on government arises from the Constitution’s Establishment Clause. The governing principle, deeply grounded in history, can best be understood as a prohibition on government involvement – through regulation or financial support – in “purely and strictly ecclesiastical matters.” That principle (developed at greater length in our book, Secular Government, Religious People) explains why the government may not decide, for example, who is fit for ministry or which faction within a church is acting in fidelity to its original teachings. The principle applies with equal force to the state’s relationship with houses of worship, religious non-profit institutions such as schools or charities, and for-profit businesses whose owners assert a corporate religious character. The only legally relevant differences among these types of organizations should be derived from the likelihood that the principle will be implicated in any particular case. After reviewing the 19th century underpinnings of this singular approach, and offering pertinent reminders of limits on state financial support for religious teaching, the chapter focuses primarily on the context of employment regulation. Along the way, the chapter addresses concrete questions, such as whether a for-profit business can ever successfully assert a ministerial exception with respect to any of its employees. The answer may surprise you