Homeschoolers take asylum claims to the Supreme Court

A German homeschooling family seeking asylum in the United States will take its case to the Supreme Court, the Home School Legal Defense Assocation announced Monday.

A lower court ruled against Uwe and Hannalore Romeike in May. Their appeal for a re-hearing has now also been denied, leaving the Supreme Court as the family's last option in the US legal system. The federal court said there weren't grounds to re-hear the case, as the issues that the homeschooler's lawyers raised in the appeal had already been dealt with.

The lawyers defending the family disagree. They announced they will take the case to the Supreme Court because "we firmly believe that this family deserves the freedom that this country was founded on."

The Romeike's have become something of cause célèbre on the right. The case is seen as a defense of freedom and of parents' rights to educate their children. Legally, however, as the judge pointed out in the ruling rejecting the Romeike's claims, the case doesn't hinge on whether or not homeschooling is a right or a privilege. The legal question is whether or not homeschoolers in countries where homeschooling is illegal qualify for asylum in the United States, whether or not they should be considered a "particular social group" as defined by asylum law.

The Home School Legal Defense Association asked the Romeike's to come to the United States explicitly to challenge the law. The aim was to get homeschooling recognized as a grounds for asylum, and to put pressure on German courts and lawmakers, possibly embarrassing them, possibly stirring up some public sympathy for homeschoolers and getting the laws changed.

The organization has long lobbied for homeschoolers internationally, and helped organize a German counterpart to HSLDA in 2000. When homeschooling families lost high profile court cases in Germany in 2000 and in 2007, the American group worked to politically organize German homeschoolers, but also began looking for alternative defenses. It was in that context that the HSLDA approached the Romeike's with the idea of a legal battle in the US Federal Courts.

"We analyzed the legal battle for freedom in Germany and concluded that prospects were not promising," HSLDA lawyer Michael P. Donnelly wrote.

We knew that laws would have to be changed if there was to be freedom for German homeschoolers. This would require changing public opinion and getting the attention of legislators. Because there were so few homeschoolers in Germany, there was no way they could exert any kind of political influence. And in the face of the German Supreme Court decisions, we knew that officials would need heavy prompting to confront this issue.

In further developing the new strategy, Jim Mason, HSLDA Director of Litigation, suggested considering a political asylum case. He contacted former HSLDA Legal Assistant Will Humble, who was now actively practicing immigration law and who agreed to assist with the Romeike’s political asylum claim. Humble outlined the arguments that would have to be made for such a case, and HSLDA began to look for the right test case.

The first opportunity came in the form of a case that had started back in 2006 .... Our thought was that this test case, if successful, could pave the way for an American asylum claim as well as start the process for creating public awareness in Germany.

To date, this strategy hasn't been successful. The Romeike's case has received only the slightest media attention in Germany, and hasn't generated any groundswell of support for the country's few homeschoolers. The case was also not successful in court. In May, the judge ruled that the family had not met the legal burden of proving they were persecuted in Germany for being homeschoolers. He argued, further, that:

The United States has not opened its doors to every victim of unfair treatment, even treatment that our laws do not allow. That the United States Constitution protects the rights of 'parents and guardians to direct the upbringing and education of children under their control' does not mean that a contrary law in another country establishes persecution on religious or any other protected ground [legal citations removed].

The HSLDA will continue their fight, though. The deadline for an appeal to the Supreme Court is in October. Whether or not the court will hear the case is another question: only about 75 to 80 cases are heard annually out of the approximately 10,000 petitions.

If the court declines to hear the case, the Romeike's will be forced to leave the country. They could resettle in one of the many Western European countries where homeschooling is allowed, including Austria, Belgium, the Netherlands, Norway, and Switzerland.

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The First Amendment legal battle in Texas politics

The politics of the legal battles over the public religious displays and the vagaries of what it means for a government to respect an establishment of religion are playing out in Texas, now, in the governors' race that's just getting started.

Gregg Abbott, Texas' attorney general, announced on Sunday he is running for governor. If he wins, he'll succeed Rick Perry and George W. Bush, likely becoming a Republican Party leader and someone talked about, at least, as a possible presidential candidate. Political observers expect him to win: He has $20 million in his campaign war chest, the blessing of the Republican party establishment, and a reputation for being a fighter.

As attorney general, Abbott has sued the Barack Obama administration 27 times. He has said that's his job, suing Obama.

But perhaps the most important example of his fighting is one Supreme Court decision on the First Amendment question of a Ten Commandment monument. It's evidence that some Texans take quite seriously, evidence which may well be parlayed into lots of votes.

Part of that reputation for fighting comes from Abbott's personal biography. He was paralyzed by a falling tree 29 years ago, and has been confined to a wheelchair ever since. Despite that challenge, he's had a successful career as a lawyer, served as a judge on the Texas Supreme Court from 1995 to 2001, and has been the attorney general since 2002.

In his gubernatorial race announcement, Abbott said, "You know, too often you hear politicians get up and talk about having a spine of steel. I actually have one, and I will use my steel spine to fight for you and Texas families every single day."

The other part of his fighter's reputation comes from Abbott's successful legal defense of a public display of the Ten Commandments. In 2005, the Supreme Court decided the case of Van Orden v. Perry in Abbott's favor. That's not incidental to his campaign announcement. His political ambitions are underwritten by how Texas voters view that victory, and his role in that victory. The court ruled that, though on the grounds of the capitol, the monument of the decalogue -- which was erected by a fraternal order in connection with the promotion of Cecile B. DeMille's film, The Ten Commandments -- did not signify a government endorsement of religion.

From the opinion, written by then-Chief Justice William Rehnquist:

The Capitol Grounds, as a whole, form the proper context in which to determine the effect of the Ten Commandments monument upon a reasonable observer. And this overall, museum setting precludes any reasonable perception of official endorsement of the monument’s religious content .... In its museum-setting context, this monument would not convey to the reasonable observer any official en- dorsement of religion. This is simply not a context in which the State is reasonably understood to be taking sides. The many monuments commemorating veterans do not communicate disapproval of pacifists; the Tribute to Children does not reflect negatively on older Texans; the Hiker and horse-riding Cowboy monuments send no message concerning motorized transport; and the Volun- teer Firemen monument reflects no official disapproval of those who pursue firefighting as a paid profession. The monuments, memorials, and commemorative plaques on the Capitol Grounds are not reasonably perceived as creating 'insiders' and 'outsiders' in the Texas political community.

Rehnquist also wrote that the monument was not exclusively religious, as it has a civic meaning, says something about the history of the laws of the state, and can also be seen as a tribute to the fraternal order that put up the monument in the first place. Those who want Christianity honored in the public square have not seemed dismayed by the claim that the publicness depletes the religiousness.

In his campaign bio, Abbott's role in Van Orden v. Perry was highlighted as an example of the kind of person he is and the kind of governor he would be. The official statement says, "Attorney General Abbott believes there is no higher power than God, and in March 2005 he personally appeared before the United States Supreme Court, where he successfully defended the constitutionality of the Ten Commandments display that adorns the Texas Capitol grounds."

Another lawyer representing Texas in the case has already built a political career on the Van Orden v. Perry decision. Ted Cruz, now a U.S. senator, references the court case regularly in his speeches. He cites "Preserving Religious Freedom" as a major reason to support him. The Supreme Court decision that the Ten Commandment monument isn't an endorsement of religion is listed as the first bullet point evidencing that commitment. Cruz's campaign literature says "that U.S. Supreme Court victory set a vitally important precedent for the right to display similar monuments across the nation."

Legal scholars are not as persuaded of the significance of the court case. They have pointed to the case as an example of how confused the jurisprudence on the First Amendment's establishment clause is, at the moment. But if the precedent is not as clear as it might seem, politically, the political value of the victory is clear enough for Cruz's stump speeches and for Abbott's gubernatorial campaign.

It's a win. It's the victory of fighters. It's the basis of a reputation to run on.

Abbott faces a long-time Republican operative and venture capitalist in the GOP primary. Some expect the recently famous Wendy Davis to go up against the Republican candidate in the general election, though no Democrat has won the governorship since George W. Bush took it in 1994.

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Secular Jesus

A statue of Jesus at a ski resort is not religious, according to a federal court ruling. Or at least not religious enough to matter.

"Big Mountain Jesus," as the statue is called, has become secularized, and over the years has lost the potency it might have once had to seem like a religious message to any passersby.

In the ruling, Judge Dana L. Christensen, an Obama administration appointee, wrote that the statue is "unquestionably a religious symbol" but is not really very religious, lacking any significant symbolic power. Because, "for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

The symbol is secular because it's impotent.

Christensen explained:

the statue does not convey any message that individuals visiting Big Mountain whether in the summer or winter might be treated more favorably or less favorably depending on their religious beliefs or affiliation.

and,

The statue's secular and irreverent uses far outweigh the few religious uses it has served. The statue is most frequently used as a meeting point for skiers or hikers and a site for photo opportunities, rather than a solemn place for religious reflection. Big Mountain Jesus is one of the last remaining remnants from the original Big Mountain Ski Resort, and many individuals in the community value its historic significance. For many, it reflects the evolution of the town of Whitefish from a lumber town to a tourist attraction .... Typical observers ofthe statue are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer.

There are other reasons for the court's ruling that the statue on land leased by the federal government does not violate the First Amendment's Establishment Clause. The Lemon test was applied, there questions about what a "reasonable observer" would infer about the relationship between church and state from the statue, issues of standing, and so on.

This aspect of the case is quite strange, though. It's come up several times now, where those who defend religious symbols in public spaces defend them on the grounds that the symbols are meaningless. You have to wonder about how the Knights of Columbus that went up to the top of the mountain to put of a statue of their Lord and Savior would feel now that that statue is official recognized as a symbol of a town's tourist economy.

Don Byrd, of the Baptist Joint Committee for Religious Liberty, said the secularization of the Jesus statue is one reason religious people should be committed to the separation of Church and State. He writes,

The idea is disturbing that a monument to Christ can lose its religious significance, and become an appropriate government monument in the process, due to years of 'frivolity.' This line of thinking underscores why we should not allow government to co-opt religious monuments. In so doing, government doesn't honor religion, it systematically secularizes its expression.

The ruling will likely be appealed.

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Teachers v. church schools v. the government

The conflicting claims of legal rights of church teachers and church schools are being further tested in the federal courts.

In California this week, a federal judge ruled in the case of Family, Life, Faith and Freedom v. Lynda Serrano. In this case, a Calvary Chapel school sued two former teachers to prevent them from suing the school.

The teachers refused to submit statements of faith and pastors' recommendation letters, a year ago, and they were let go. The school deems its teachers to be "spiritual leaders," and considers the paperwork necessary in evaluating instructors' continuing spiritual leadership qualifications. It's not clear from the court documents why the teachers did not want to explain their faith and get pastors to write them letters of recommendations, but when their contracts were not renewed, they threatened to sue for wrongful termination. The church school then took its former teachers to federal court.

The lawyers for the school argued that if the teachers were allowed to make the case they had been discriminated against, that would violate the church's constitutionally protected right to the free exercise of religion.

Judge Dolly M. Gee, an Obama administration appointee, granted the teachers' motion to dismiss the suit on Tuesday. Interestingly, the ruling doesn't go so far as to say the teachers can sue their religious employer, but does say federal law cannot prevent them from filing wrongful termination suits in state court.

Gee wrote:

it is apparent that Plaintiff’s entire complaint consists of anticipated defenses to a yet-to-be-filed state court religious discrimination suit, and thus no federal question is raised. This Court therefore has no subject matter jurisdiction.

The judge criticized the lawsuit fairly harshly, calling the school's lawyers incompetent several times, and suggesting the suit was meant to harass and intimidate the ex-teachers. Some of the school's arguments would have been "dispelled by a modicum of competent legal research," Gee wrote. The church was ordered to pay the ex-teachers' lawyers' fees.

The school, for its part, will reportedly appeal the decision.

This case connects to the landmark Supreme Court decision handed down last year, where the court ruled the First Amendment right to free religious exercise entails a "ministerial exception" to laws against employment discrimination. In Hosanna-Tabor v. EEOC, the Supreme Court decided religious groups get to establish their own standards for determining who is a minister, and that if someone is considered to be a minister, they are not entitled to protections against employment discrimination. Ministers can be fired for basically any reason.

The Hosanna-Tabor case involved a "called" teacher at a Lutheran school. She got sick, went on sick leave, and then when she was approved to go back to work by her doctors, the school made moves to dismiss her because of anxieties about her condition, narcolepsy. The teacher threatened to sue, and then the school fired her for making the threat, which they said was a violation of their beliefs about conflict between Christians.

No secular school would have been allowed to fire that teacher. No religious school would either -- unless it had established that teachers were more than teachers, they were ministers, and so subject to all the capriciousness of those they served.

In the majority opinion, Chief Justice John Roberts wrote, "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

In Family, Life, Faith and Freedom v. Lynda Serrano, the Calvary Chapel school lawyers cited Hosanna-Tabor, about the rights of religious groups to not be held to the standards of employment law. The teachers at their school are also considered ministers, and were also fired for threatening legal action against a church school employer. The school's lawyers attempted to argue that the ministerial exemption from employment law should also mean protection from possible discrimination litigation in state court.

According to Judge Gee, the federal courts don't have the jurisdiction necessary to block anticipated state court lawsuits that might violate churches' religious right of hiring and firing ministers. Whether or not the appeal will go anywhere remains to be seen.

It seems likely, though, that the courts will be facing more cases like this in the future. They'll continue to hear cases where there are conflicting claims about the rights of teachers and church schools, where they have to determine the scope of this constitutional protection of a "ministerial exception," and figure out the consequences and the logical, legal extensions of last year's landmark decision for religious liberty.

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Alton T. Lemon, 1928 - 2013

Alton T. Lemon, the plaintiff in a landmark Supreme Court case on the separation of church and state, has died at the age of 84. A very private man, little is known of his life apart from his membership in the American Civil Liberties Union and brief time as president of a Philadelphia Ethical Humanist Society. His obit didn't make the New York Times until 21 days after his death.

In the late 1960s, though, he lent his name to the lawsuit where the Supreme Court established the three-part legal test for determining whether or not a government has violated the constitution by "respecting an establishment of religion." Wherever American lawyers debate whether or not a government has, in fact, gone so far as to endorse a religion, Lemon's name is invoked.

Asked about his role in First Amendment history, Lemon said he was proud to have been involved in Lemon v. Kurtzman, but:

I have never sought public recognition for my role in the case. Almost all of our friends are Protestant and some don’t understand my position. We had one friend who was a schoolteacher who thought it was terrible that God was being removed from the schools .... Some people go down in history in famous books, but I might go in a dusty law book or something. I don’t view things out of proportion.

It's not just the dusty history books, though. The three-part establishment test that bears Lemon's name, the Lemon Test, is a contentious bit of jurisprudence. It has been attacked from a number of directions and may not survive the John Roberts court.

The two most conservative justices on the court, Antonin Scalia and Clarence Thomas, issued a blistering attack on the Lemon test in 1993. In a concurrence authored by Scalia, the Lemon Test was described as "Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad." Especially bothered by the inconsistent use of the judicial standard, Scalia accused his fellow justices of invoking or ignoring the Lemon Test as suited their purposes.

"Such a docile and useful monster," he wrote, adding:

For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced .... I will decline to apply Lemon -- whether it validates or invalidates the government action in question.

One need not endorse either Scalia's legal philosophy or his argumentative style to think there's a problem with the Lemon Test. It's maddeningly vague and wide open to wildly divergent interpretations.

According to the Lemon Test, a government has endorsed a religion if:

• a law is passed which does not have "a secular legislative purpose,"
• a statute's "principal or primary" effect is either to advance or inhibit religion,
• a governmental action results in "excessive government entanglement with religion."

In that decision, then-Cheif Justice Warren Burger said the test was necessary because of the vagueness of the First Amendment prohibition of "respecting an establishment of religion," and because the constitutional guarantee does not just prohibit a state religion, but many other state-religion interactions as well.

As Burger wrote:

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be 'no law respecting an establishment of religion.' A law may be one 'respecting' the forbidden objective while falling short of its total realization. A law 'respecting' the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.  

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.'

The lines that have been drawn, though, are hardly clear ones. How can the secularity of a law be determined? By what measure is the "primary" effect of a law to be judged? An entanglement should be considered excessive in comparison to what? And to whom does it have to seem excessive?

In at least 20 recent federal court cases, the Lemon Test has been used in different and inconsistent ways. Judge Richard Posner, a Reagan appointee, described the Lemon Test as "formless, unanchored, subjective." In a 1980 ruling, written by Kennedy-appointee Byron White, the Supreme Court noted that the Lemon Test lacked "clarity and predictability," two things typically valued in a law.

Legal scholar J.H. Choper, who clerked for Earl Warren and now teaches at Berkley, said the endorsement test that bears Alton T. Lemon's name "fails to provide a judicial standard capable of principled application." According to Choper, "application of the Lemon test generated ad hoc judgments incapable of being reconciled on any principled basis," and resulted in a kind of "conceptual disaster area."

This conflict and confusion is at issue in two current cases which could give the Supreme Court the opportunity to revisit the question of the Lemon Test.

The court has agreed to hear Town of Greece v. Galloway this term, and decide whether prayers offered by private citizens to open town council meeting violates the First Amendment prohibition on respecting establishments of religion. A lower court, citing the Lemon Test, concluded that because the majority of such prayers were Christian, the town was effectively affiliating with the Christian faith. A central part of the dispute is over whether the second prong of the Lemon Test -- the matter of primary purpose -- should be measured in terms of intent or effect.

The court is also considering hearing Elmbrook School District v. Doe, a case where graduation ceremonies were held in an evangelical church. There's no dispute this was done for practical reasons, but the lower courts have disagreed on whether or not the school's use of the religious space was excessive entanglement and over whether or not it advanced religion. One lower court ruled that observers would be able to separate the religious symbols of the church sanctuary from the proceedings.  Another disagreed, concluding that "Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state."

It's possible that rulings on either or both of these cases could substantially transform the test by which "respecting an establishment of religion" is judged.

The late Lemon, for his part, reported being worried in the last decade of his life that the courts would erode the legal separation of church and state. He wasn't worried about the judicial standard that bore his name per se, but was bothered by the trend he saw of conservative justices  allowing for government endorsements of Protestantism. In 2003, he told the Philadelphia Inquirer that "separation of church and state is gradually losing ground, I regret to say."

A year later, he expressed his suspicions that conservatives would establish a state church, if they could.

"At this point in my life," the then-76-year-old said, "I seriously wonder why we have religion. I am not so sure it does more good than harm. I think that the battle for church-state separation has to be a continuing fight."

And, judging by the contentions over the Lemon Test, it is.

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An atheist prays in Az. state legislature

It's normally assumed that atheists don't pray. When an atheist state representative in Arizona -- one of the few openly atheist lawmakers in the country -- was tasked with offering a prayer to start an afternoon session of the state legislature, though, he stepped up. Juan Mendez, a 28-year-old Democrat who identifies labor leader and civil rights activist Cesar Chavez as his political hero, asked the legislators not to bow their heads, and then offered up a god-free prayer.

The Phoenix New Times reports:

'This is a room in which there are many challenging debates, many moments of tension, of ideological division, of frustration,' Mendez said. 'But this is also a room where, as my secular humanist tradition stresses, by the very fact of being human, we have much more in common than we have differences. We share the same spectrum of potential for care, for compassion, for fear, for joy, for love.' 

Mendez continued, 'Carl Sagan once wrote, "For small creatures such as we, the vastness is bearable only through love."'

According to the Arizona Republic, the other lawmakers in the house had no response. In a comment Mendez left on the popular atheist blog The Friendly Atheist, he said "there are more non believers than you would think" in Arizona.

Mendez was elected to office in 2012. As a lawmaker, he has authored legislation that would bar credit card company marketers from college campuses, allow voters to register to vote the day of elections, reform the procedures for assessing affordable housing, require home owners associations to allow vegetable gardens, and start a micro enterprise development program. He hasn't sponsored or co-sponsored any legislation specifically related to religion or atheism.

Update (May 23): Mendez's secular humanist prayer did get some response, after all.

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US federal court: Homeschoolers aren't persecuted in Germany

Homeschoolers are not a "particular social group" facing persecution in Germany, a federal appeals court has ruled, and homeschooling in a country where it's illegal is not grounds for asylum in the United States.

The ruling is a legal defeat for Uwe and Hannelore Romeike, a German homeschooling family, and the homeschooling activists who sought to use the case of Romeike v. Holder to get homeschoolers classified as a special, protected class.

The Romeikes have argued that they were being persecuted by the German government because they were homeschoolers; the Obama administration's Justice Department made the case that running afoul of the law does not amount to persecution, per se. In a ruling released yesterday, three federal judges unanimously agreed with the Obama administration.

Writing for the court, Judge Jeffrey S. Sutton wrote:

The question is not whether Germany’s policy violates the American Constitution, whether it violates the parameters of an international treaty or whether Germany’s law is a good idea. It is whether the Romeikes have established the prerequisites of an asylum claim -- a well-founded fear of persecution on account of a protected ground. [....]  

The Romeikes have not met this burden. The German law does not on its face single out any protected group, and the Romeikes have not provided sufficient evidence to show that the law’s application turns on prohibited classifications or animus based on any prohibited ground.

According to US law, five groups of people are eligible for asylum if they are being targeted by their home governments because they belong to one of those categories: race, religion, nationality, political opinion, or belonging to a "particular social" group. The last is not defined by the law, and has been only vaguely defined by the courts. The Romeike's lawyers were attempting to argue that homeschoolers should be considered such a "particular social group," negatively targeted in Germany.

The court rejected that argument, finding that the German law was not directed at homeschoolers, to suppress or oppress them, but is a law of general applicability.

According to Sutton (a George W. Bush appointee), the Romeikes needed to prove one of number of things. Either they had to prove that Germany's compulsory education law was designed specifically, "on its face," to persecute the particular social group, homeschoolers, or they had to prove that the law is selectively enforced to punish a particular social group (i.e., homeschoolers), or they had to prove that the law is, in practice, only applicable to that group.

Even assuming that homeschoolers are to be taken as a particular social group, and so in principle eligible for asylum, the Romeikes did not present evidence that "the compulsory school attendance law is selectively applied to homeschoolers" or that "homeschoolers are more severely punished than others whose children do not comply with the compulsory school attendance law."

In this ruling, the court affirmed that parents do have the Constitution-protected right to "to direct the upbringing and education of children under their control," an issue that had raised concerns among US homeschoolers. The court found, though, that that is not legal grounds for asylum:

The United States has not opened its doors to every victim of unfair treatment, even treatment that our laws do not allow. That the United States Constitution protects the rights of “parents and guardians to direct the upbringing and education of children under their control" does not mean that a contrary law in another country establishes persecution on religious or any other protected ground [legal citations removed].

The court cited Samuel Alito, now a conservative Supreme Court Justice, to support this argument. In the 1993 case of Fatin v. INS, where a woman wanted asylum from Iran on the grounds she was upperclass, educated, a feminist and a not a Muslim, Alito wrote,

the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were defined that expansively, a significant percentage of the world’s population would qualify for asylum in this country -- and it seems most unlikely that Congress intended such a result

Alito could get the chance to revisit that argument, as the Romeikes' lawyers hope to take this case to the Supreme Court. Michael Farris, chairman of the Home School Legal Defense Fund that recruited the Romeikes from Germany and is representing, said the group will file an appeal.

Whether or not the court is interested in hearing this case is another question.

For now, Germans who want to move to the US to homeschool their children will have to apply for immigrant visas, rather than apply for asylum.

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Judges seem skeptical of homeschoolers' persecution claims

The three judges set to decide whether a German homeschooling family qualifies for asylum in the United States seemed skeptical during a court hearing Tuesday in Cincinnati, Ohio, according to news reports.

Uwe and Hannelore Romeike are arguing that homeschoolers ought to be considered a "particular social group" persecuted by countries that have laws requiring all children attend public or state-approved private schools. According to U.S. law, people persecuted because they belong to a "particular social group" are granted asylum. The law does not define the term, but federal courts have generally interpreted it as meaning a group that has some immutable characteristic. A lower court found that the family could not be considered religious or political refugees. If the Romeikes lose the appeal, they will not be required to return to Germany, but they will have to leave the U.S.

One of the three judges who will decide the case asked pointedly whether any German law is targeted at homeschoolers specifically, or if the law is not rather of general applicability. He also said that it's entirely possible for children to attend a public school and still receive additional private training from their parents, the Associated Press reported.

"Germany is not forbidding home-schooling ... It's not like saying you can't teach them at home in the evenings," said Judge Jeffrey S. Sutton, a George W. Bush administration appointee.

A second judge said that ruling in the Romeike's favor would mean "opening the door" to many, many asylum seekers. The judge speculated that such a precedent would possibly mean anyone in any country being punished under a law not supported by the United States would be entitled to refugee status.

The third judge on the panel said that Germany's rules about mandatory education do not seem designed to suppress Christianity or oppress homeschoolers, but to integrate minorities into society and teach tolerance.

Michael Farris, the Romeike's lawyer and the head of the homeschool organization that encouraged the family to emigrate to America when they were facing legal trouble at home, rejected the idea that public schools might be socially valuable by teaching tolerance. He said, "If that's tolerance, it's tolerance unknown in a free society," according to the Baptist Press.

After the 38 minutes of oral arguments and judges' questions, the Baptist Press' reporter concluded that "the judges suggested that they may not grant asylum, arguing that mistreatment by the German government is not tantamount to persecution and not necessarily a ground for allowing the family to remain in America."

That is exactly what the Justice Department lawyers are arguing.

In court, the Obama administration representative said the German law "is not a great law." But that's not the same as persecution, he said, and isn't grounds for considering those in violation of that law a protected, "particular social group."

Farris, for his part, was holding out hope on Tuesday afternoon that the judges would decide in favor of the homeschoolers. In a statement he said "tough questions were asked on both sides, and it's hard to predict the outcome," but "God can intervene."

The German homeschoolers have may supports on the American right -- including Glenn Beck and Mike Huckabee -- who are hoping for divine help. As Hannelore Romeike noted outside the courthouse after the hearing, "there are so many people praying for us."

In addition to prayers, supporters have also organized social media campaigns calling attention to the case and accusing the Obama administration of siding with Nazis and harboring Latin American criminal immigrants while deporting good homeschooling Christians. To date, more than 120,000 people have signed a petition stating that the "Romeikes hope for the same freedom our forefathers sought. Please grant the privilege of liberty to the Romeike family."

According to the Home School Legal Defense Association, the federal courtroom overflowed with supporters during the hearing. The Associated Press put the number of supporters in attendance at about 50 or 60.

It could be several months before the appeals court judges rule on Romeike vs. Holder.

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Hitler wins: the disjunction of law & politics in Romeike v. Holder

The definition of a very vague legal term is at the center of oral arguments being heard today in a federal appeals court in Cincinnati, Ohio. That term is "particular social group."

In US law, that is one of five named groups of people eligible for asylum -- and the most ill-defined. The other categories are race, religion, nationality, and political opinions. If someone can demonstrate they are being persecuted or that they fear being persecuted on those grounds, they can be granted refugee status in America. People also have the right to asylum if they're being persecuted because they belong to a "particular social group," but what that means, who that applies to, is a matter of a legal dispute. In the case in court today, the question is whether or not homeschoolers count as a "particular social group" and should be granted asylum if they come to the US from a country where homeschooling isn't legal, such as Germany.

The political agitation coming out of this court case bears only the slightest relation to the legal issue, though.

The activists who care about this case, Romeike vs. Holder, don't appear to be at all interested in the legal issue at the heart of the case. They are, though, very interested in the way public perception of the case allows them to agitate against the Obama administration and for homeschooling.

The Romeike family has become a cause célèbre on the American right.

Uwe and Hannalore Romeike left southwest Germany in 2008, facing mounting fines for their refusal to send their children to either a public or private school. At the behest of the Home School Legal Defense Association, a non-profit committed to advocating for the rights of parents to homeschool, the Romeike's travelled to the US on tourist visas and then applied for asylum, claiming they were being persecuted in Germany for their religious belief that they should homeschool. The family does not belong to nor affiliate with any religious organization, but cited numerous Bible verses that they say instruct them to educate their own children, despite their lack of official credentials to do so.

The couple also claimed the German education system was teaching their children all sorts of things that they were opposed to, including witchcraft, though they didn't offer any evidence to support those claims.

Uwe Romeike told the authorities, "God requires me and my wife to educate our children at home ourselves."

In 2010, a federal judge ruled that the family was indeed a "particular social group" -- i.e., homeschoolers -- being persecuted in Germany, and thus could be considered to have the right to asylum in America.

The Romeike's lawyers also argued they were being discriminated against because of their political opinions and religious beliefs, but the court didn't accept those arguments. The family had no history of political activity. They certainly were religious, but the law they were accused of violating had no religious component to it, and didn't qualify, legally, as amounting to religious persecution. The judge wrote, however, that the family was being attacked by the German government because the German government, "for some unknown reason," wants to suppress the particular social group that is home schoolers. Their request for asylum was granted.

Then, a year ago, the immigration appeals board overturned the court's decision. The board ruled the Romeike's were not legally entitled to the status of refugees, as homeschoolers do not constitute a protected class, since they are a diverse group, amorphous. The main legal standards for establishing a group as a "particular social group," established by the precedent of court rulings, require the Romeike's lawyers prove that homeschoolers are a group with immutable characteristics. This means they have to make the case that being a homeschooler involves "a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed." There are also other interpretations of what this term means that have been used by the courts, as is outlined in a Boston College International and Comparative Law Review article that strongly supports the Romeike's asylum case. The extensive legal issues involved in this case are further argued by one of the HSLDA lawyers in a long blog post here.

None of that shows up in the popular arguments being about this case, however.

Instead, the HSLDA is promoting arguments like this:

That comparison has been picked up and repeated by those who strongly support homeschooling and strongly oppose Obama and, generally, American liberalism. For example, a self-described "homeschooling guru" blogger writes,

the Obama Administration, while disregarding millions of illegal immigrants and Mexican drug lords sneaking over the Southern borders, dismissed the judge’s argument and immediately set their sights on an innocuous homeschooling family from Germany .... This case should be on the radar screen of every parent who values the freedom to raise and educate our children without government interference.

A FOX News story opened with the same comparison between "good" immigrants and the bad ones: "While the White House and many lawmakers push to grant legal status to immigrants who crossed the border illegally, the Romeike family thought they followed the rules -- but now face deportation."

None of this has anything to do with the case, in reality. The merits of the case -- on which the case will be debated and will be decided -- have not the slightest relationship to the question of immigration reform or general immigration policy. The politics of immigration aren't at issue in the federal appeals court.

The case has even less to do with Nazism, but the political agitators have been very aggressive in associating Germany's education law to that dark period of German history, making the hand-wavy argument that either this family should get asylum in America or the Nazis win. Though public education has existed in Germany since Luther, and was law long before Nazis took charge, people defending the Romeike's right to be seen as persecuted refugees repeat claims that German education policy is, at bottom, a Nazi policy.

As HSLDA head Michael Farris put it,

the German government wants to prohibit people who think differently from the government (on religious or philosophical grounds) from growing and developing into a force in society. It is thought control. 

It is belief control. It is totalitarianism dressed up in politically correct lingo. 

In the same vein, HSLDA has argued people should speak up in support of the Romeike's because:

While Dietrich Bonhoeffer's face may not symbolize principled opposition to growing government encroachment on the freedom of religion to everyone, that's what it communicates to Christian conservatives in America today.

Nor are the ad hitlerum arguments always so subtle.

A Neo-Calvinist homeschooler wrote that in this case, the US Attorney General is taking the side of Nazism in federal court. The homeschooling father writes:

This may be a glowing example of the argumentum ad hitlerium fallacy, but consider the facts. Adolf Hitler will be one of Eric Holder’s witnesses for the prosecution against the Romeikes. This is a human rights contest where the prosecution will posthumously call Adolf Hitler to testify on their behalf whenever German law is invoked, and the German Supreme Court’s upholding of these Nazi laws is the primary witness in Eric Holder’s case against the Romeikes.

No facts are actually involved in that paragraph. But details of how and why German education policy developed aren't relevant to rhetorical excess, nor to the political argument for homeschooling and against government generally. And anyway, no one who is making this argument-by-free-association seems to have bothered to investigate why Germans tolerate and even avidly support the ban on homeschooling.

It's enough, politically, to shout "Hilter!"

Or, as a columnist at the right-leaning Washington Times wrote, "small-minded and grasping totalitarianism .... It sounds like they aren’t really big on religious or philosophical diversity over there."

Even if it were what it seemed like or sounded like to those who think loose comparisons to Hitler serve as evidence of totalitarian intent, that wouldn't be relevant to this court case being heard in Ohio today. The decision won't be based on anything having to do with Hitler. Or immigration. Or any of the political conflicts being actively aggravated by homeschooling advocates in loose connection to the Romeike case.

The court case isn't about any of these things.

But then maybe that's the point, because HSLDA can lose this appeal and still advance its cause and rally its base with all this rhetoric and agitation that's only tangentially connected to the court case purportedly arousing it. Getting people up in arms can serve a purpose. And people are unlikely to strong emotional reactions to debates over the definition of "particular social group" in a US asylum law passed in 1980. The politics of this and the legal case in the courts are, when one looks at them, only barely related. The two discourses never quite intersect, even when they're presented as being (and necessarily, for the sake of the politics) entirely the same.

This is what's really crazy about the public debates about politically sensitive court cases -- knowing the facts of the case and legal issues being debated doesn't really turn out to be particularly relevant to the social groups who really, passionately care.

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Religious arguments in the legal fights over same-sex marriage

Photo by Jamison Weiser (CC)

A man dressed up in Catholic liturgical regalia protests religious teachings against same-sex

marriage in San Francisco, Monday.

One of the biggest, most contentious issues in the ongoing American culture wars goes to the Supreme Court this week, with oral arguments today and tomorrow in two cases about the constitutionality of legally defining marriage as between a man and a woman.

At Religion and Politics, law professor Calvin Massey offers a preview of the cases:

Hollingsworth v. Perry confronts whether California’s 2008 constitutional amendment to ban same-sex marriage violates the U.S. Constitution, specifically its guarantee of equal protection to all persons under the law. Prop 8 drew a lot of attention during the 2008 election; it was bolstered by a host of religious organizations, notably the Roman Catholic Church, the Church of Jesus Christ of Latter-day Saints, and megachurch pastor Rick Warren. It passed by a 52 to 48 percent margin, receiving more than 7 million “yes” votes. Then two same-sex couples filed suit in federal court to invalidate Prop 8. The trial court voided the amendment and a federal appeals court affirmed that decision on equal protection grounds.

In United States v. Windsor, the plaintiff, Edith Windsor, is an 83-year-old widow who is challenging section 3 of DOMA, also on equal protection grounds. When her spouse Thea Spyer died in 2009, Windsor was not allowed the marital deduction for estate taxes, though she and Spyer legally married in 2007. DOMA, enacted in 1996 under the Clinton administration, makes federal marital benefits available only to married couples of the opposite sex. Because of this, Windsor paid some $350,000 in estate taxes before she sought a refund in federal court. The trial court agreed with her, and the federal appeals court affirmed the ruling; the federal government has appealed to the Supreme Court.

Massey notes that because of the way culture-war conflicts have played out over the last 40 years, some proponents of same-sex marriage are actually hoping for a small victory, rather than a big, dramatic win. If the court strikes down all same-sex marriage bans, that could detrimental to the cause, resulting in lots of backlash and generations of cultural entrenchment, where conservatives use the court's ruling as a rallying cry. It's a fear of a Pyrrhic victory. Massey calls this the "specter of Roe v. Wade":

Roe overturned all state laws prohibiting abortion, and even those that severely regulated but did not outlaw abortions. The result, as Justice Ginsburg noted in her Madison Lecture at NYU Law School, delivered 20 years ago this month, was that the trend in the states toward progressive legalization of abortion was truncated by a sweeping judicial fiat. Had the Court confined itself to striking down the Texas law at issue in Roe, without addressing the validity of other states’ laws, there would have been room for further evolution of abortion laws in the states. Instead, Roe closed the door of legislative change and brought about a 40-year battle of high emotions, even violence, and stubborn opposition to Roe and its progeny. 

When people feel that they have lost in an open and democratic debate, they may not like it but will usually accept the popular verdict. But when people feel that their voice has been ignored by a process in which they have no input, they are apt to resist the result as an illegitimate usurpation of democratic institutions

National Public Radio has a piece on a Pentecostal church in El Paso where many people would likely respond to a clear legal victory for same-sex marriage in just this way. That church has -- like a number of conservative Christian groups -- been politically active on what NPR dramatically calls "one of the battlegrounds in the gathering war over gay marriage." It's not a great news story. There are more than a few problematic framing issues typical of accounts of "culture war." But the story does give space to the views of some of those religious people in America who are deeply opposed to same-sex marriage, and worried about what the court might decide in June. One of the main fears is that a sweeping ruling will, by judicial fiat, etc., basically rule religiously informed arguments against same-sex marriage unconstitutional.

This is one of the many legal arguments that religious groups are officially making in these two cases, which can be found in the nearly 100 amici filed with the Supreme Court, where various groups not directly involved in the dispute offer their input in legal briefs.

In Hollingsworth v. Perry, there are at least two dozen such briefs from religious organizations. A survey of some of the arguments those organizations are making in favor of the right of the State of California to legally define "marriage" as only involving opposite-sex couples shows the variety of religious arguments that are being made. Some are familiar, some innovative.

A sampling:

• The National Association of Evangelicals, The Ethics and Religious Liberty Commission of the Southern Baptist Convention, The Church of Jesus Christ of Latter-day Saints, and the Missouri-Synod Lutherans jointly argue the lower court's ruling that overturned the voter-approved definition of marriage was "a misguided incursion into this democratic debate," mis-applying legal precedent, and declaring "in the name of the Constitution that religious understandings are irrational and illegitimate, even when coupled with nonreligious judgements."
• The Conference of Catholic Bishops argues that legally defining marriage as being between a man and a women is "rationally related to legitimate state interests," because of opposite-sex couples potential to procreate and because children are better off when raised with a father and a mother. The bishops write "as a matter of simple biology, the union of one man and one woman is the only union capable of creating new life [and] the People of California could reasonably conclude that a home with a mother and a father is the optimal environment for raising children." They further make the case if religious and moral considerations are involved in enacting such a ban, that doesn't make it constitutionally invalid, since "Many, if not most, of the significant social and political movements in our Nation’s history were based on precisely such considerations. Moreover, the argument to redefine marriage to include the union of persons of the same sex is similarly based on a combination of religious and moral considerations (albeit ones that are, in our view, flawed)."
• The Coalition of African American Pastors USA and others argue that the historic ruling striking down state bans on inter-racial marriage cannot be used to strike down bans on same-sex marriage. They write "the anti-miscegenation statutes in Virginia were at war with the core purposes of marriage -- especially the fostering of responsible procreation and child rearing by biological parents -- because those Virginia statutes prevented children from being raised in the optimal setting: a family headed by married biological parents" (emphases original). According to this group, the present movement to legalize same-sex marriage is analogous to historic efforts to ban inter-racial marriage, since both seek to radically redefine marriage for the sake of "extraneous" social policies. 
• The Foundation for Moral Law makes the argument that "the Framers of the Constitution would be shocked to see their document twisted to protect something they regarded as abhorrent" and that "marriage is not simply an individual right, but rather it is a divinely-established institution that is as old as if not older than civil government."
• Catholics for the Common Good (a lay-led organization from California) argues that legally defining marriage as necessarily involving opposite-sex couples is not discriminatory, but based on reasonable judgements about the biological differences between men and women. The claim is made that "there is a vast body of credible, scientific evidence that supports the California voters’ choice to differentiate the nomenclature to be assigned to male-female pairs (marriage) and single-sex pairs (domestic partnership)." They argue it must be permissible for states "to construct public policies that assume that there is a real difference between men and women; between mothers and fathers; between boys and girls; and between male-female sexual relationships, and those of same-sex couples."
• Family Research Council -- once the political arm of Focus on the Family, though now independent -- offers what they call "alternative grounds" on which same-sex marriage can be rightly, legally banned. One argument the group makes is that "the fundamental right to marry that has been recognized by this Court is limited, by the nature of marriage itself, to opposite-sex couples." Another argument offered is that the state's definition of marriage did not discriminate against anyone, since all men and women, even homosexual men and women, have the right to marry someone of the opposite sex. 
• Patrick Henry College makes the argument that legal definitions of marriage are necessarily about morality, and not allowing the people of a state to ban same-sex marriage means coercing them to morally sanction same-sex marriage. The college writes: "The definition of marriage [...] is a quintessentially moral determination, for it encompasses the question of what marriage ought to be. Since this case (like any case dealing with polygamy or incest) is about the meaning of marriage, rather than access to it on equal terms, each side is asking the state for moral sanction through the designation, 'marriage.'"

There are also a number of religious organizations that have filed amici in favor of striking down California's ban on same sex marriage. One has the backing of 18 different groups, most of which are mainline Protestant or Jewish. These include the Episcopal Church, the United Church of Christ, several Lutheran groups, several Presbyterian groups, the Unitarian Universalist Association, and a Quaker group, as well as the Union of Reform Judaism, the Rabbinical Assembly, the Reconstructionist Rabbinical Association, the United Synagogue of Conservative Judaism, and others. In their brief, these groups emphasize the breadth and diversity of support for same-sex marriage among religious groups, and make an argument from American religious pluralism. They claim that "permitting same-sex couples to marry will not impinge on religious beliefs, practices, or operations, but rather will prevent one set of religious beliefs from being imposed through civil law." Another such brief has been filed by a number of California-based religious organizations who say they oppose legally defining marriage as between a man and a woman because that would be "governmental discrimination turning on whether a committed couple's union accords with liturgical doctrines."

There is a slightly smaller number of legal briefs from religious groups filed in the second case, United States v. Windsor. Some of the groups involved are the same, though there are also others. In these briefs, those arguing for a federal law -- the Defense of Marriage Act (DOMA) -- defining marriage as being between a man and a woman turn their attention to questions of discrimination, and whether or not such a law discriminates against homosexuals. There are also assorted other arguments that are made. A survey of some of the religious organizations' arguments:

• The National Association of Evangelicals, et al., make a technical argument about how "suspect classes" should be determined in questions of violation of Equal Protection, and argue, more generally, that religious groups "have just as much right as anyone else to have our views considered by democratic decision makers. But that cannot properly occur if the great marriage debate is removed from our democratic institutions and decided by the judiciary under a heightened standard of review."
• The Family Research Counsel writes that DOMA "on its face, does not discriminate between heterosexuals and homosexuals, but between opposite-sex married couples and same-sex married couple," and repeats many of the arguments made in Hollingsworth v. Perry.
• The Catholic bishops argue DOMA's definition of marriage is not a problem because it does not deny anyone a "fundamental right," since there is no fundamental right to same-sex marriage. According to the bishops, "civil recognition of same-sex relationships is not deeply rooted in the Nation’s history and tradition—quite the opposite is true. Nor can the treatment of such relationships as marriages be said to be implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed."
• The Manhattan Declaration, Inc. -- the movement with a manifesto with more than 500,000 signatures of Catholic, evangelical and Orthodox Christians who believe "the male-female nature of marriage to be an essential Christian teaching" -- argues for the universality of the DOMA definition of marriage, and that it has nothing to do with animus towards homosexuals. A religious liberty argument is also made. The group writes:  "Marriage is a foundational institution universally known and accepted, without regard to the accidents of time and place, as a male-female coupling" and "redefining marriage imperils religious liberty and oftentimes requires that freedom of conscience be sacrificed to the newly regnant orthodoxy." Striking down the federal law defining marriage as between a man and a woman would, according to Manhattan Declaration, "constitutionalize" same-sex marriage.
• Robert P. George, who helped found the Manhattan Declaration, Inc., and has been at the forefront of natural law arguments against same-sex marriage, argues that the question for the court to decide is not the definition of marriage, but only "whether citizens and legislators may embody in law the belief in marriage as a conjugal union, as they have historically done." He further argues that it is rational and practical for those citizens and legislators to define marriage as necessarily involving opposite-sex couples (implying it is not just a religious judgement and therefore should be allowed).
• The Chaplain Alliance for Religious Liberty argues similarly, making the case that striking the opposite-sex marriage provision from DOMA would mean that "service members who adhere to traditional religious beliefs on marriage and family will likely be penalized and marginalized, and the chaplaincy’s efforts to protect religious liberty will face severe conflicts."
• Concerned Women for America -- the group Beverly LeHaye founded -- writes that homosexuals should not be a class protected against discrimination because, as a group, they're politically powerful, having "repeatedly demonstrated their ability to influence public policy through democratic means. And their influence is only increasing. Their causes are supported by the mainstream media, popular culture, big labor, and big business." The group also makes the argument that in this case, one of the key questions at stake is who defines marriage, in addition to how marriage is defined. The group argues that the decision should be made democratically, i.e., not by the courts.

There only seem to be two amici from religious groups opposing DOMA's definition of marriage in United States v. Windsor. As in Hollingsworth v. Perry, there's one brief with a large number of socially left-leaning religious groups signed onto it. These groups have chosen a strategy that's quite different than the right-leaning groups 21-guns approach. In that brief, filed by the Episcopal church of the 10 states and the District of Columbia where same-sex marriage has been legalized, six Reform and Conservative Jewish groups, the Unitarian Universalists, the United Church of Christ, and several Lutheran, Presbyterian and Methodist groups, the arguments made in the amicus in the other case are substantially repeated. They repeat the point that there is no one religious position on same-sex marriage and that a particular religious doctrine about marriage should not be given the backing of federal law. 

What import these various arguments will have in the cases before the Supreme Court remains to be seen. What is notable about these arguments from religious groups is how secular they are. They're secular in the sense that they're grounded in this-worldly justifications, arguments which are, in principle, accessible to all. These are arguments about social good, arguments that could mostly be proven or proven false with data. The cases being made mostly do not involve arguments from revelation, or religious authority, or any claims that necessarily entail any theistic ontology.

Steve Bruce has argued the rise of the religious right as a political force is evidence for secularization even in America for exactly this reason. He writes:

Critics of the secularization paradigm sometimes point to the Christian Right as evidence that social differentiation has not marginalized religion. I draw the opposite conclusion from the same data .... Christian Right organizations now present their causes in secular language .... They cannot assert that God dislikes divorce [e.g.]. They have to argue that divorce is socially dysfunctional. 

This is important, because the culture war that's fought around such issues as these Supreme Court cases is often understood -- especially by those involved -- as a pitched battle between secular and religious forces. Religious people and organizations that are politically active on the right regularly express the fear that secularists are attempting to effectively disenfranchise them, push them out of the public sphere. That's certainly the fear expressed by the pastor of the Pentecostal church in El Paso, profiled by NPR. It's an issue raised by many of the religious groups that have filed amici in these legal cases. Court rulings tend to aggravate that feeling of disenfranchisement, which is why some advocates of same-sex marriage (such as Andrew Sullivan) prefer the issue not be settle by the courts. And why some observers think conservatives stand to gain by losing these cases in court.

But, here, the religious forces are secular forces.

The main "religious" arguments being made for the legal definition of marriage as only being between opposite-sex couples is not religious, in any meaningful way. The counter argument being made, likewise, is not that these arguments should be disallowed because they are religious. Ted Olson, for example, the lawyer advocating for homosexuals' right to get married in the Hollingsworth v. Perry case, responds to the religious right's secular arguments with secular counter-arguments, saying that each fails only because it fails to prove what it sets out to prove, which is that it is in the state's interest to bar homosexuals from the legal benefits and protections of the institution of civil marriage.

As NPR reports:

Olson replies that none of the offered justifications for Proposition 8 hold water -- not family, not kids, not the institution of marriage. No one, he says, has come up with any reason why same-sex marriage 'damages heterosexual marriages in any way.' 

Ultimately, he says, it is no justification to say the country has been doing something for hundreds of years, if it flies in the face of the constitutional guarantee of equal protection of the law.

There are many like the Reformed theologian Peter Leithart, who worry that Christian arguments against same-sex marriage are barred from the public debate, and that even if they were allowed, they'd be underwhelming. Religiously informed arguments would be ineffectual and unpersuasive. "It will take," he recently wrote, "nothing short of a cultural revolution for biblical arguments to be heard, much less to become persuasive." This is because, for Leithart, it seems that "the only arguments we have are theological ones, and only people whose imaginations are formed by Scripture will find them cogent."

In these two Supreme Court cases, though, it is apparent that theological arguments aren't the only ones. Whether or not the non-theological arguments are any more cogent and persuasive to the general public is another question.

It's that question that has bubbled up in an intra-religious conservative dispute about the usefulness of the idea of natural law. The ideas of natural law underly many of the arguments religious groups are making in the legal briefs in these two cases: that there is a natural and right order that can be determined by rational thought and ought to be adhered to for the sake of human flourishing.

As Hugo Grotius pointed out, a key aspect of natural law is that it depends on reason alone, and holds "etsi Deus non daretur," even if God is not a given. Which is to say, it is secular.

The natural law arguments against same-sex marriage that are being made and have been made are secular, and thus at least theoretically reasonable and effectual in public debates in a pluralistic society. This is why the theory of natural law was embraced so wholeheartedly by conservative Christian groups seeking to have a political impact on American culture. As Brad Littlejohn explains:

With the ascendancy of the Moral Majority, conservative Christians found themselves catapulted into the public square, and the more sophisticated were conscious that a raw and undiluted biblicism was not going to get them very far in public debates. Finding themselves shoulder-to-shoulder with Catholic co-belligerents in the culture wars, evangelicals glanced over at the popish playbook and thought natural law looked like a pretty promising notion. Accordingly, they took up the idea with gusto.  

But now, scarcely a decade into this revolution [....] finding that natural law arguments are gaining them no traction in the current debate, evangelicals, and indeed many within the whole cobbled-together conservative coalition, were already wavering and considering withdrawal.

The wavering can be explained by the fact that natural law theory was picked up, by and large, because of the promise it would be a powerful tool. Conservative religious people involved in political activism may believe in natural law, but there's a strong instrumentality to that belief. Where strictly religious and theological arguments (built on biblicist or presuppositional epistemologies) had failed, those grounded this way, in reason -- commonly accessible, public reason -- would succeed. That was the promise. And yet they haven't, or at least not enough. The swing in public opinion on the topic of same-sex marriage has been shocking. Arguments about natural order have had little strength, where the testimonies about the public good of gay marriage have been both affective and effective.

The images of long-committed same-sex couples getting married have seemed to growing portions of the public to speak much more clearly about the common good, and much more persuasively about the kind of society that American citizens want to live in.

The natural law arguments against same-sex marriage have been so unpersuasive, it seems that the only way to continue to hold them is by way of giving up on the debate. To quote Littlejohn again, "We seem to be back in a situation where we must simply give up on the rest of 'irrational' society and retreat to our strongholds, or else aggressively assert the superiority of our own reasoning and call upon our opponents to subject their reasons to the yoke of Christ."

These are the religious arguments that have gone to the Supreme Court, though. Perhaps in that context things will be different. Or, perhaps the sun is setting on these particular religio-political arguments.

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An emerging alliance in defense of sharia

The attacks on sharia law in American have been vociferous and completely out of proportion with actual instances of sharia law in America. A coalition of conservatives with various concerns have sought to enact legislation prohibiting sharia -- prohibiting state judges from considering religious codes that Muslims believe to be binding and might, e.g., have cited in private contracts, or even going so far as to enact legislation that equates adherence to the Islamic rules for worship with terrorism, so that "sharia organizations," including mosques, would be illegal.

Defenders of sharia against these state prohibitions are now arising from a perhaps unexpected quarter. Sharia has an ally with some Jewish legal thinkers and some Jewish groups concerned about the way these laws infringe on religious liberty.

From Florida:

A Florida state bill targeting a supposed threat from Islamic law may instead end up preventing Orthodox couples from using Jewish religious courts, or batei din, to arbitrate their divorces, according to legal specialists and some Jewish groups. 

[....] 

The Council on American-Islamic Relations has vowed to fight the bill. So too has the strictly Orthodox umbrella organization Agudath Israel of America.

There are other problems with the proposed Florida law, including the fact it is worded so ambiguously that it's not at all clear how the courts might apply the legislation. One Jewish state representative is arguing that the law is designed to have no legal effect at all, actually, and is merely meant to "generate fear of Muslims," reinforcing some of the political rhetoric of recent days.

What's interesting, though, is this alliance between a religious Jewish groups and Islamic groups. An important feature of fights over religious liberty in the United States is the way that different groups end up politically allied, with common cause. This was true in 1802, when Deists and Baptists came together in opposition to the establishment of religion, and in 1989, when the Native American Church's religious use of peyote was defended by the Traditional Values Coalition, the Christian Legal Society, the National Association of Evangelicals and the American Jewish Congress in their push to enact the Religious Freedom Restoration Act.

As the political landscape shifts, groups that might otherwise have little in common come together. Change, in these sorts of affairs, seems to happen by this process of alliances.

Others have noted the possible common cause of Muslims' wanting to defend their right to use sharia in some limited legal contracts and so forth and other religious groups in America. Eric N. Kniffen, of the Beckett Fund for Religious Liberty, has argued that the case against Muslims' religious practice in America is historically similar to the cases made against Jews, Mormons and Catholics, implying that those groups ought to sympathize with and even support American Muslims in these political struggles. Matthew Schmitz, of First Things, made the argument that there's no reason to be more suspicious of Muslims' claims to religious freedom than of Protestants' or Catholics', and that there is, rather, a common cause the three groups could share: protecting the US Constitution against illiberal excesses. Eliyahu Stern, a religious studies and history professor at Yale, also made a case in the New York Times for the specific alliance of Jews and Muslims in opposition to a ban on sharia.

It has seemed to me, though, that those alliances was mostly theoretical. Jewish groups' sympathies for Muslims' rights to religious exercise have been mixed. For example, in the controversy over Perk51 -- the so-called "Ground Zero Mosque" -- there seemed to a lot of conflict between Jewish groups, and even within Jewish groups.

It's too early to tell for sure, but perhaps that's changing. There are at least some efforts being made at the moment to flesh out the connections between Jewish religious practice in American and Muslim religious practice in America, and how their relationship to America law is identical. In Chicago, next month, for example, there's a conference of religious scholars and legal scholars considering the topic of "Shari'a and Halakha in America." There are experts on Judaism and on Islam scheduled to attend, as well as one scholar from a evangelical Christian school. At the conference, they plan to consider:

how liberal democracies can and should accommodate legal systems that are not themselves originally grounded on liberal or democratic principles [and] to what degree can systems of this sort adapt themselves to a liberal democratic environment? This conference will explore these questions, as they pertain to both shari'a and Jewish law (halacha).

The questions are good, but what's more important is the combination of Jewish and Muslim religious laws as the subjects of the question. Whether or not such efforts change the political landscape remains to be seen, but this is the sort of shift that does change things.

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Strategic misremembering

There was a lot of celebration following the Supreme Court's decision in Hosanna-Tabor v. EEOC. For those who see themselves as defenders of religious liberty, the decision was a victory. A triumph. Religious liberty won, the "current Administration’s audacity" and "an unprecedented aggression" was "repudiated by a unanimous Supreme Court," and the "secularists" were taken to the woodshed.

So why are those who celebrate this victory systematically misrepresenting it?

In a prime example of this misrepresentation, Timothy George and Thomas G. Guarino summarize the case incorrectly at First Things. They write:

"Not long ago, the Equal Employment Opportunity Commission (EEOC) challenged the 'ministerial exemption' traditionally granted to churches so they may choose their ministers according to their own criteria, unhindered by state interference. The arguments advanced by the executive branch of government, in Hosanna-Tabor v. EEOC, would have significantly reduced those protections. Fortunately, the United States Supreme Court, insisting that religious freedom is the cornerstone of democracy, unanimously supported the traditional exemption."

In case you weren't counting, the brief summary used "traditional" twice. Once: the exemption that is "traditionally granted." Twice: the "traditional exemption."

The word has resonances, obviously, with a narrative of conservatism as defense of the "way things are," resistance to government overreach and liberals' and secularists' radical attempts to restructure society. Those on the Hosanna-Tabor side of Hosanna-Tabor v. EEOC, are, in this rendering, not just on the side of religious liberty, but also on the side of tradition. The side defending what conservative thinker Russell Kirk would have called custom, convention, continuity -- preservation of these three being the second of Kirk's conservative principle. Defending, that is to say, vis a vis the third Kirk principle, "things established by immemorial usage."

As neatly as this narrative works, though, it doesn't fit the case at hand. The exemption at issue in the case is not traditional. According to the unanimous opinion of the Supreme Court that found in favor of Hosanna-Tabor, this isn't an issue of tradition. The question is rather about the extent of an exemption, and understood, critically, as a question over the definition of "minister."

The question was whether the exemption that does have a legal precedent (in lower courts) should be understood to also include the specific, unusual kind of exemption from discrimination law that was claimed by Hosanna-Tabor, a Lutheran school that fired a teacher and rescinded her "calling" after she got sick.

Chief Justice John Roberts wrote the unanimous decision. That decision says: "Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment."

As Roberts understands the issues of the Supreme Court decision, it's not a matter of upholding tradition. It's not -- contra First Things -- a case of rejecting a strange new governmental imposition of rules that ignore the freedom of religious exercise, citing precedent and being done with it. Rather, as Roberts puts it, it was a matter of considering the constitutionality of one kind of use of the exemption that has never been considered before.

Thus: a new thing.

Lyle Dennison, a journalist who has covered the Supreme Court for 54 years, reported that what the court did, in this decision, it did for the first time.

He wrote, "the Supreme Court on Wednesday unanimously gave its blessing -- for the first time -- to a 'ministerial exception' to federal, state, and local laws against virtually all forms of discrimination on the job."

And, "The Court, as it acknowledged Wednesday ... has never recognized an explicit 'ministerial exception' to anti-discrimination laws at any level."

Again, it's not about tradition and upholding tradition. So why represent it that way?

If you read John Roberts' decision, which is easy enough to do, it's clear that there were three arguments in the case, all of which came down to the issue of what should define a "minister" for the ministerial exemptions to equal employment opportunity law.

In the first argument, Roberts writes that,

"We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

The fact that the court ruled that there is such an exemption as the the ministerial exemption is important, but the more significant fact to note, here, is how that position eligible for the exemption is being defined. It's being defined by the religious group itself. There's no objective standard, dictionary definition, or legal requirements for a minister. Religious groups decide and define for themselves.

In the second argument, where Roberts turns specifically to the case of Hosanna-Tabor firing a teacher, the issue is the same. It's the question of definition, not tradition or traditional exemptions. Roberts writes that the teacher in the case was a minister because she was "held ... out as a minister," by the church, "with a role distinct from that of most of its members." He writes that, further, the teacher "held herself out as a minister of the Church." Roberts adds that there was a process she had to go through and additional training she had to undertake to get the title, "minister," and that in that capacity she did serve "important religious functions" for the church.

In the third argument, Roberts responds to those arguing against Hosanna-Tabor. He writes why the EEOC is wrong,and its argument has to be rejected. Critically, he doesn't say they're wrong because they think the government has the right to interfere with religious groups' internal decisions about who will minister. Contrary to those who supposedly celebrate this decision, the decision isn't about state interference, but the definition of minister, according to Roberts. He writes that the EEOC was

"contending that any ministerial exception 'should be limited to those employees who perform exclusively religious functions.' We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."

In Dennitson's gloss on this, he writes that, essentially, employees are not protected by anti-discrimination laws or employment laws if they work for a religious organization that defines them as ministers. And "the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission" by the religious organization, according to the religious organization's internal criterion.

Any Supreme Court ruling of course works on several different levels, in different spheres. One is the legal, how the ruling is understood by judges and lawyers in all the federal courts, how it shapes future decisions of the EEOC and lawmakers, etc. Another one, though, is how it's understood culturally.

It seems to me that, culturally, this case is consistently represented as something it's not. The court's decision is being misrepresented by those who like it and celebrate it. Though the decision really only did come down a short time ago, the memory of it seems to have gotten kind of turned around.

The misremembering seems like its in service of a larger narrative. The question is, is it strategic?

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