By / Sep 25

Recent media coverage and statements by public figures about Judge Amy Coney Barrett, a federal judge being considered for the Supreme Court, have raised concerns of a religious test being applied to judicial candidates who are associated with Christian groups. 

For example, Newsweek published a piece with the title, “How Charismatic Catholic Groups Like Amy Coney Barrett’s People of Praise Inspired ‘The Handmaid’s Tale.’” (The reference was to Margart Atwood’s The Handmaid’s Tale, the 1985 dystopian novel about women who are enslaved by quasi-Christian theocrats.) Newsweek later issued a correction stating, “The book’s author, Margaret Atwood, has never specifically mentioned the group as being the inspiration for her work,” but has not retracted the misleading article.

Similarly, the wire service Reuter’s published an article that was originally titled, “Handmaid’s Tale? U.S. Supreme Court candidate’s religious community under scrutiny.” The article claims that Barrett was an unconfirmed member of People of Praise, a “charismatic, ecumenical and covenant community” that includes “Roman Catholics, Lutherans, Methodists, Episcopalians, Presbyterians, Baptists, Pentecostals and other denominational and nondenominational Christians.”

Reuter’s also points out that from 1970 to 2016, People of Praise used the term “handmaiden” for women leaders. The group said the term handmaid was used by the group to mirror Jesus’s mother Mary, who called herself “the handmaid of the Lord” (Luke 1:38, NAB). The group also said in 2018 they stopped using “handmaiden” because “the meaning of this term has shifted dramatically in our culture in recent years.”

What is a religious test?

A religious test is a requirement that to hold public office a person must either hold or reject a particular set of religious beliefs or must be formally affiliated with a particular religious group. Religious tests are used to secure the bond between the state and a particular religion and to prohibit anyone not associated with that religion from holding political office.

For example, religious tests were used in England to “establish” the Church of England as an official national church. As Alan E. Brownstein and Jud Campbell explain, the Test Acts, in force from the 1660s until the 1820s, required all government officials to take an oath disclaiming the Catholic doctrine of transubstantiation and affirming the Church of England’s teachings about receiving the sacrament. These laws effectively excluded Catholics and members of dissenting Protestant sects (such as Baptists) from exercising political power. 

Are religious tests legal?

No, religious tests are unconstitutional. In the only explicit reference to religion in the U.S. Constitution, Article VI, Clause 3 states, “. . . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This clause explicitly bans any religious requirement to hold federal office.

Unlike most parts of the Bill of Rights, the Supreme Court has never held that the Clause applies to state as well as federal office-holding under the 14th Amendment. Indeed, it wasn’t until 1961 that the court struck down religious tests applied by the states.

At that time, the Maryland state constitution said, “[N]o religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God. . . .” Roy R. Torcaso was appointed to the office of Notary Public by the governor of Maryland, but he could not receive his commission to serve because he would not declare his belief in God. Torcaso filed a lawsuit claiming the requirement violated his rights under the First and 14th Amendments. 

In the case of Torcaso v. Watkins, the U.S Supreme Court unanimously declared that the test was an unconstitutional encroachment on the freedom of religion since it effectively aided religions that profess a belief in God at the expense of any other form of belief or disbelief.

In another case, McDaniel v. Paty (1978), the Supreme Court relied on the First Amendment to strike down state laws prohibiting clergy from holding office. The court ruled that the government’s forcing a person to choose between one’s religious beliefs and the desire to seek office was an unconstitutional restriction on the free exercise of religion.

Why can’t religious tests be applied indirectly?

In 2017, Barrett was appointed a judge on the 7th Circuit Court of Appeals. In her confirmation hearing, California Sen. Diana Feinstein implied that Barrett couldn’t be trusted to apply the Constitution and laws objectively because she was a believing Catholic

“Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different,” Feinstein said. “And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.”

Numerous legal scholars condemned Feinstein for her indirectly applying a religious test as a requirement for the federal judiciary. The reason this is wrong, as Gerard V. Bradley, a professor of constitutional law at Notre Dame, explains

The scope of anyone’s immunity from disqualification from office on religious bases now depends upon the meaning of the Establishment and Free Exercise of Religion Clauses, not upon Article VI. At present, the central rule enunciated by the Supreme Court for Establishment Clause jurisprudence is the “endorsement” test. It stipulates all public authority—from state and federal to the most local municipal body—must never do or say anything that a reasonable person could understand to be an “endorsement” of religion, i.e., that favors adherents over non-adherents. Nothing in the neighborhood of a religious test for office could survive application of this norm.

Shouldn’t religious beliefs be excluded from public policy?

Some Americans contend that the religious beliefs of elected or appointed officials are to be excluded from having any influence. For example, they claim that since the religious beliefs of Catholic jurists shape how they decide on the legality of abortion, it is legitimate to exclude faithful Catholics from the judiciary if, as Feinstein might say, “the dogma lives loudly” within them. 

The underlying assumption is that there are certain beliefs that are accessible to a majority, if not all people, through publically accessible reason. These are legitimate, while more narrow beliefs—based on such things as religion—are illegitimate because they are not considered publicly accessible and held by a broad majority of citizens.

This is a key premise in the argument for secular neutrality in law and public policy, which requires that all religious beliefs be checked before entering the public square. Ironically, the result is that certain religious beliefs (e.g., those that are reductionist and based on materialism) are welcomed while others (any religion that relies both on general and special revelation) are excluded.

However, even though such beliefs are openly excluded, they are still allowed to smuggle in the beliefs that the secular neutralists cannot derive from their own religious beliefs (e.g., atheists who are also materialists don’t have any basis for natural human rights, and so must borrow presuppositions from the theistic religions).

This is not to say that all religiously based arguments are legitimate or that they deserve preferential treatment in matters of law and public policy. However, to believe that religious beliefs should be excluded from the public square because they are religious is itself a belief rooted in a religious belief (i.e., a presumption of agnosticism). Since this argument is based on neither reason nor reality, there is no reason Christians should accept the myth of secular neutrality. 

By / Sep 28

What’s the case about?

Carl and Angel Larsen are filmmakers in St. Cloud, Minnesota and the owners of Telescope Media Group, a company that “exists to glorify God through top-quality media production.” The Larsens want to expand their business to include wedding videos for public clients but are afraid the Minnesota Human Rights Act (MHRA) would prevent them from limiting their services to the expression of biblical marriage between a man and a woman.

With the aid of Alliance Defending Freedom (ADF), the Larsens are pursuing a pre-enforcement challenge to the law through the federal court system. Last week, though, the court denied their request and ruled in favor of the state’s motion to dismiss the lawsuit. ADF is currently appealing the court’s decision.

What is the purpose of the lawsuit?

The Minnesota Department of Human Rights has interpreted the MRHA in a way that forces creative professionals like the Larsens to promote objectionable messages even though, as ADF points out, “they gladly serve everyone and decide what stories to tell based on the story’s message, not any client’s personal characteristics.”

The lawsuit, Telescope Media Group v. Lindsey, is a pre-enforcement challenge to those portions of the MHRA.

What is a “pre-enforcement challenge”?

The law discriminates against Christians because the state disagrees with our message.

A pre-enforcement challenge is a lawsuit brought to challenge a law that has not yet been enforced against the challenger. According to ADF, courts allow pre-enforcement challenges 1) when enforcement is "certainly impending" or a "substantial risk" or 2) when the law presently injures the citizen.

This second scenario often occurs when a statute restricts free speech and litigants stop speaking to avoid penalties. To mitigate this "self-censorship" injury, courts frequently hear pre-enforcement challenges in the First Amendment context, even allowing speakers to challenge laws when they haven't been “directly” threatened with arrest.

 What is the Minnesota Human Rights Act?

The Minnesota Human Rights Act (MHRA) is a state law prohibiting discrimination in Minnesota based on race, color, creed, religion, national origin, sex, marital status, familial status, disability, public assistance status, age, sexual orientation, and Local Human Rights Commission Activity.

In 1993, the Minnesota Legislature amended the MHRA to include a prohibition on many forms of discrimination on the basis of “sexual orientation.” The statute broadly defines “sexual orientation” to include anyone “having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness.” (The only exception under the definition is that “sexual orientation” does not include a physical or sexual attachment to children by an adult.”

Why should Christians care about this lawsuit?

As the lawsuit notes, the Larsens are Christians who believe God has called them to use their talents to create media productions that honor God. The couple is “deeply concerned that American culture is increasingly turning away from the historic, biblically-orthodox definition of marriage as a lifelong union of one man and one woman” and that “more and more people are accepting the view that same-sex marriage is equivalent to one-man, one-woman marriage.” The Larsens want to be able to use the power of film and media production to “change hearts and minds” and to “celebrate and promote God’s design for marriage as a lifelong union of one man and one woman.”

However, the MHRA would impose restrictions on their Free Speech by imposing a requirement for them to use their talents and their company to spread a message the couple disagree with. The state’s human rights commission has explicitly stated that any business that creates “expressive wedding-related services” and declines to celebrate same-sex weddings is in violation of the law.

By refusing to film a same-sex wedding the Larsens could be subjected to the payment of a civil penalty to the state, as well as compensatory damages and punitive damages up to $25,000 per aggrieved party. They could also be charged with the criminal offense of discrimination, a misdemeanor under Minnesota law punishable by a fine of up to $1,000, up to 90 days in jail, or both.

The MHRA is thus being used to discriminate against Christians because the state disagrees with the content of their message, a clear violation of First Amendment freedoms of speech and religion.

“People should have the freedom to disagree on critical matters of conscience, which is why everyone, regardless of their view of marriage, can support the Larsens,” says Jeremy Tedesco, a senior counsel and vice president of U.S. Advocacy and Administration for Alliance Defending Freedom. “The same government that can force them to violate their faith and conscience can force any one of us to do the same. That’s why we plan to appeal this ruling to the 8th Circuit.”

By / Feb 4

Over the past decade, traditional marriage supporters have been losing public support, with data from the Public Religion Research Institute showing anti more than 20 percent decline during the period. Evangelicals are also waning in their opposition to same-sex marriage most recently detailed in a Time Magazine piece. Yet, of late, traditional marriage supporters have been adopting a strategy that may improve their public case.

For years, same-sex marriage supporters have successfully framed the debate in terms of the “right to marry” and “marriage equality.” Rights and equality are the trump cards of political liberalism, and these are arguably the two most potent frames in American political discourse. Supporters of traditional marriage have lacked a counter-argument that could stand up to these effective declarations. Arguments regarding tradition, nature, and children seemed to lose to those of rights, especially for the young who are more susceptible to rights frames. Recently, however, activists have been reframing their support for traditional marriage using the language of rights, arguing that children have the “right to have both a father and a mother.” Some recent research suggests that this might be effective.

Individual rights are one of the touchstones of the American experience, central to both American culture and the U.S. Constitution. Discussions of rights profoundly affect our politics and our law, and the role of rights in law and politics has increased in the past century in what has been called the “rights revolution”.[1] Some, such as Harvard legal scholar Mary Ann Glendon, have criticized the growth of “rights talk” in American politics, arguing that rights-based arguments promote uncompromising issue positions that produce polarized politics and essentially cheapen fundamental rights.[2] Yet others, including UNLV political scientist Ted Jelen, have countered that rights based rhetoric is the most easily publicly accessible form of public discourse.[3]

Individual rights have long been the domain of liberals in American politics, but conservatives have increasingly wielded the rights sword with success.[4] For religious conservatives, the pro-life movement is the hallmark of this strategy. Pro-abortion supporters gained significant ground in political and legal debates by framing the debate in terms of the pro-choice rights of women, including the ubiquitous “woman’s right to choose”. Yet, pro-life supporters had their own rights-based claim, arguing for the “right to life” for the unborn child. From the beginning, many pro-life advocates framed their arguments in support of the inalienable right to life of the unborn, as seen in the founding of National Right to Life Committee in 1968. Yet, some prominent evangelical leaders, including Reverend Jerry Falwell, often cited feminism and sexual morality concerns, along with the right to life, in their abortion opposition throughout the 1970s,[5] cluttering public discourse. As the pro-life movement grew and evangelicals and Catholics became more unified on the issue, the right to life became the dominant theme of abortion opposition, serving as a compelling, rights-based counterclaim to abortion rights. Wielding this rights claim, pro-lifers have made great progress in the abortion debate, particularly among the young.

My co-authors and I have been examining the effectiveness of conservative rights-based claims on American public opinion. In September 2014, we published an article in Social Science Quarterly that analyzes the results of a series of survey research experiments conducted on college students across the United States.[6] The experiments present a hypothetical political candidate who expresses support for one of five conservative issue positions: 1) a ban on abortion; 2) support for the death penalty; 3) opposition to same-sex marriage; 4) opposition to nationalized healthcare; and 5) support for teaching creationism in public schools. For each category, the candidate expressed his position in terms of either public morality or rights. Consistently, college students rated the candidates that expressed their positions in terms of rights as less polarizing and less overtly religious. Opposing abortion using right to life language was the most effective at making the candidate seem more moderate and less religious, two qualities that are useful in political debates. In addition, non-evangelicals were particularly influenced by rights-based argumentation. Non-evangelicals who received the rights-based, pro-life argument were more likely to rate the candidate as being less conservative, and they were also more likely to view most of candidates that used rights language as being less religious.

Our study suggests that issue framing matters. In addition, contrary to those who are skeptical of rights talk, we find support for the suggestion that emphasizing rights can yield both political success and less polarizing results, especially for younger Americans. The one issue where we could not find support for a conservative rights claim, however, was same-sex marriage. We conducted this study at four universities in late 2010 and early 2011, and the arguments for traditional marriage did not feature an emphasis on rights. Our hypothetical scenarios had the rights-oriented candidate state that he opposed same-sex marriage because he supported the “right of communities to define marriage.” In our article, we suggest that this argument fails to generate success in public opinion because it is not at the forefront of the debate and because it is not compelling. The primary reason why it is neither prominent nor compelling is because this states’ rights argument does not tap into the American ethos—it is not an individual right.

Our research may lead some to suggest that failure is imminent for the traditional marriage perspective, as many others have proclaimed of late. In the past few months, though, prominent proponents of traditional marriage have tweaked their arguments. Individual rights have begun taking center stage, with advocates declaring that children have the right to a father and a mother. This rhetoric was central to the Vatican’s conference on the “Complementarity of Man and Woman” in November 2014 with Pope Francis declaring in his keynote speech that “children have a right to grow up in a family with a father and a mother capable of creating a suitable environment for the child’s development and emotional maturity,” and it has increasingly been used by Catholic and evangelical supporters of traditional marriage.[7]

This line of argumentation is nascent, and rights-based arguments for traditional marriage have not been empirically tested. Yet, they fit the pattern of success of other rights claims. The right of children to have a father and a mother is individual in nature, it is oriented toward the vulnerable, and it can be buttressed with data that supports the value of mothers and fathers. The best-case scenario for conservatives would be what happened with the pro-life movement, where a compelling rights-based argument coalesced with scientific data to serve as a formidable counterweight to a social and political movement—abortion rights—that many thought was a foregone conclusion. To date, the “right of children to have a mother and father” may be the best antidote to “marriage equality.”

_____________________

[1] See, e.g., Richard L. Pacelle, Jr., The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration (Boulder, CO: Westview Press, 1991).

[2] See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

[3] See Ted G. Jelen, “Political Esperanto: Rhetorical Resources and Limitations of the Christian Right in the United States,” Sociology of Religion 66: 303-21.

[4] Prominent examples include: the right to free speech, the right to religious freedom, and the right to life.

[5] See Daniel K. Williams, God’s Own Party: The Making of the Christian Right (New York: Oxford University Press, 2010).

[6] Paul A. Djupe, Andrew R. Lewis, Ted G. Jelen, and Charles D. Dahan, “Rights Talk: The Opinion Dynamics of Rights Framing,” Social Science Quarterly 95: 652-68.

[7] See e.g.: Ryan Anderson and Sarah Torre. “The Right to Life and a Culture of Marriage.” National Review Online. December 10, 2014. John Stonestreet, “The Other Right.” Breakpoint. December 22, 2014.