“They Should Leave”

May 17th, 2015

Last week, I blogged about a Harvard Crimson report about an event at the Petrie-Flom Center on Hobby Lobby and religious liberty. The story quoted Harvard Law School Dean Martha Minow as suggesting that if religious people cannot “live with” the “values of this country,” then “they should leave.” The Crimson subsequently issued a retraction, and explained the remarks were taken out of context. After the Crimson issued the retraction, I took down my post (something I have only done a handful of times in the 5+ years I’ve been blogging).

The video of the event has now been posted, and you can see Dean Minow’s remarks. They start at 1:39:10. The relevant portion the Crimson reported on begins at 1:41:10.

At 1:41:10, her initial point is that “law is really a bad tool for dealing with these issues, particularly adversarial litigation,” because of its all-or-nothing approach. For many people of faith, “and I count myself in that category, if the choice is adhere to your faith or leave the country, they’ll leave the country, it’s just that simple. When a group of Amish families were engaged in Wisconsin v. Yoder, if the United States Supreme Court had not found a way to create an exemption for otherwise fining the parents for sending their children to the public high school, they would have left the country, we are clear about that, that is what they told their lawyers, that is what they planned. That would be sad, since this country actually had been a haven for religious freedom really since even before its founding.”

But then at 1:42:07, she continues. “On the other hand, there will be some issues where the values of this country will run into conflict with some people’s religious views, and if they can’t live with it they should leave. The problem is, if law is answering the question it may make it more all-or-nothing than it needs to be, because many times there can be accommodations that can be worked out on a much more nuanced level than win-or-lose when there are two parties, particularly when dealing with a variety and diversity of religions in America where there are third parties, fourth parties, and fifth parties affected by the resolution between two parties.”

She returns to the topic towards the end at 1:43:10. “The risk of demonizing people with whom you disagree is escalating. I think that is the more serious than any particular competing view on the resolutions of issues posed now they we deal with the fallout of Hobby Lobby. I have a plea for tolerance and listening and trying to understand, which resonates with every religious tradition with which I am familiar with. I also want to acknowledge that there is not going to be a neutral resolution. People are going to disagree. Some people may leave the country, or otherwise divest or become less involved in American politics, which would be unfortunate. We’ve seen it happen before depending on who wins or loses in the religious skirmishes.

The first remark concerning the Amish people had the nuance that she was reporting how the Yoder family would have reacted to an adverse judgment. But the second remark did not have the nuance, and read literally, suggested those people whose beliefs clashes with the “values of this country” should leave. On the whole, when read charitably, Dean Minow wasn’t saying anyone should leave, but that people may decide to leave, or withdraw from the body politic if their faith clashes with the “values of society.”

Dean Minow was kind enough to provide comments about her remarks by email, making clear that the nuance from her first remark applied to her second comment:

Thanks for being in touch. As the context of my remarks makes clear, I was speaking about the Amish in Yoder and had them, not other examples, in mind. When I said, ‘they should leave’, the phrase was in the context of the Amish community’s dilemma I had just described a minute earlier.

The general topic raises complex matters. That recognition is the basis for my general point that adversarial legal disputes generating judicial opinions may not advance the kind of workable accommodations that have been so important in this nation’s great tradition of religious inclusion and pluralism. That tradition is meaningful for anyone who values freedom and anyone who is religious, and also for anyone who values the respect and accommodation that enable diverse people to live together. It is also vital to cultivating the ethical attitudes that help instill regard for the secular law and aspiration to good behavior. A government is not likely to elicit obedience simply through fear of punishment. The secular law, in turn, may pursue rules that do not support particular religious views or practices. The tensions are complex and real, but as my comments indicate, I believe that religious freedom is important for everyone.

I appreciate that Dean Minow took the time to reply, and I feel guilty about jumping the gun, and publishing the Crimson report before the video was posted. With blogging, there is often a question of what sources am I willing to rely on. I usually try to limit my reliance to primary sources, unless I think I can trust a report. As my good friend Garrett Epps–who was a former editor of the Crimson–reminded me, you can’t always rely on student reporting. Although in fairness to the Crimson, their initial report was a reasonable interpretation of what was said–especially since the video was not post till several days later.

I admit there may have been a bit of motivated reasoning on my part, as the comments the Crimson reported on were consistent with a theme that has been germinating well before Hobby Lobby, and now in the lead-up to the same-sex marriage cases. (I develop these ideas in my article, Collective Liberty). The argument usually takes a less extreme form–not that religious people should “leave” if their beliefs conflict with the values of the nation, but they should “exit” from the state, or in Dean Minow’s words “become less involved in American politics.” This isn’t a hypothetical. For example, Catholic charities who refuse to place children for adoption with same-sex couples have closed their adoption units in Massachusetts and the District of ColumbiaReligious universities have declined federal funding rather than comply with various mandates that could impose on their beliefs. This makes it impossible for any student to receive financial aid, and renders the finances of such an institution precarious. This is all a prelude to the “Bob Jones” question Justice Alito posed to the Solicitor General during oral arguments, and to which the SG basically conceded the question.

It isn’t the case that religious organizations will be literally forced to do something that goes against their conscience, but that the failure to act in accordance with the state’s dictates will result in the deprivation of certain state benefits, such as tax-exempt status. (Let’s put aside for the moment the HHS originally crafted the contraception mandate to apply to religious non-profits like the Little Sisters of the Poor). Justice Scalia’s question about whether the state could force a priest to perform a same-sex wedding was the wrong question. The freedom of speech would probably prohibit a priest from being required to officiate at any wedding. (A Couer d’Alene City Attorney initially determined that a for-profit chapel must perform a same sex wedding, but after some outrage, reversed his position for the for-profit “religious corporation” based on the state RFRA).

The more precise question should have been whether a state or city could take away a church’s property or sales tax-exempt status, or deny a priest the license to be an officiant at any marriage ceremonies, or not recognize a ceremony performed by this officiant. (Update: A New Zealand think tank has already suggested religious group should be scrutinized before receiving a tax-exempt status). Mike Dorf has a thoughtful post addressing this question head-on–much deeper than Justice Kagan’s unsatisfactory retort about Jewish rabbis not marrying non-Jews–and explaining it isn’t entirely clear that the state would have to recognize such a wedding:

The religious ceremonies themselves would undoubtedly be permitted to occur without interference from the state. At most it might be said that if the state denies legal recognition to weddings performed by clergy who refuse to perform same-sex (or interfaith) ceremonies, the state in effect penalizes practitioners of the corresponding denominations. An opposite-sex couple wishing to be married in a faith that does not recognize same-sex marriage would need to have two ceremonies—one religious and one civic—whereas members of more egalitarian sects would only need to have the religious ceremony. But it is not obvious that this subtle pressure should be sufficient to trigger the Free Exercise Clause.

I take it that Dean Minow’s point is that it would be sad for the Amish to have to leave, if the state (or the Court) is not willing to provide an accommodation for their religious beliefs. I think she would also agree that it would be sad for the state to no longer recognize weddings officiated at by an Orthodox Jewish Rabbi if the Rabbi refuses to preside at gay weddings. I think she would also agree that it is sad for Catholic charities to shut down adoption units due to state regulations concerning placements with same-sex couples. (I had a conversation with two law professors recently who were incensed that their state was trying to pass a law to prevent religious charities from having to place children with same sex couples, so I’m not sure everyone would be sad about this).

“Sad,” sure, but what to do about it? Wasn’t this Justice Frankfurter’s point in Gobitis? If the state legislature is not interested in providing accommodations–I’m waiting for states to start repealing RFRAs–and the courts offer no additional protections for free exercise, the situation will get a lot more sad.

What makes this even more troubling, is not everyone would agree on what is sad. This past semester in constitutional law, I had a couple of students who said unequivocally that religions that treat gays and lesbians differently should not be tolerated because they are intolerant. (Think about that one for a second). I suspect, and fear, that today’s generation of trigger-warned delicate snowflakes–inculcated that millennia-old faiths that haven’t evolved with the zeitgeist over the last two decades are bigoted–will perpetuate this mentality as they become tomorrow’s leaders. A recent Pew Report suggested that in the last 7 years, the percentage of Americans who describe themselves as Christians dropped by 78.4% to 70.6%. By 2050, the percentage of Americans who will claim to be secular will increase from 16% to 25%. And unlike in the past, this generation shows no signs of becoming more religious as it ages. If the government acts to eliminate a Church’s tax-exempt status and not recognize their marriage ceremonies–further stigmatizing faith itself–this perception of religion will most likely hasten.

I recently had a discussion with several Orthodox Rabbis, and I asked them what they would do if the state threatened to revoke their power to officiate at weddings if they refused to officiate at same-sex marriages. They all agreed–they would stop exercising the power of the state to officiate at any civil weddings, and would not sign marriage licenses. They would only perform the religious ceremony.  This wasn’t even a close call for them. When I asked what would happen if a city or county tried to eliminate their tax-exempt status, the conversation took on a much more dire tone, as the Temple would be severely injured by it. In states with a RFRA, such a law would impose a substantial burden. But in states without a RFRA, I don’t see how Smith would provide any protection under the Free Exercise Clause. If anything, wouldn’t the later-in-time 14th Amendment’s heightened scrutiny for discrimination against gays and lesbians–which the Court is on the cusp of constitutionalizing–trump the First Amendment’s right of free exercise? The churches wouldn’t be required to admit, or marry gays and lesbians–that would violate the freedom of association–they would only lose their tax-exempt status. This was the crux of Bob Jones, as the Court found that the eradication of racial discrimination was so compelling that it easily allowed an infringement of the university’s beliefs.

As this trend continues, what choice will be left for religious people to practice their faith? Leave–not from America, but withdraw from the American body politic itself. This separation of church from state would indeed be very, very sad.