The Center for Law & Religious Freedom

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What's In A Name?

by Kim Colby - Senior Counsel, The Center for Law & Religious Freedom

Senior Counsel Kim ColbyAcademics particularly appreciate that the name given to an idea, theory, or right matters.This is especially true in the current religious liberty puzzle that tries to piece together religious liberty protections and nondiscrimination principles.Two big pieces of the puzzle illustrate the importance of the choice of names for an action. Is a religious group’s right to choose its leaders according to its religious beliefs protected by the freedom of “association” or “assembly”? Is the choice of leaders according to religious beliefs “religious liberty” or “discrimination”? Two scholars recently began to explore the importance of getting these terms right, but further work is required.

Freedom of assembly or freedom of association?

That the name given to a right matters is the insight at the core of a new book, Liberty’s Refuge: The Forgotten Freedom of Assembly. Professor John Inazu argues that the right of assembly has been greatly, albeit gradually over the past five decades, diminished as a result of the Supreme Court’s substitution of the label “association” for “assembly.” The book is both a description of how the change occurred and preliminary thoughts regarding how the broader scope of freedom of assembly might be recovered.

Briefly, Professor Inazu’s thesis posits that: [T]he loss of assembly and the uncritical embrace of the constitutional right of association have weakened group autonomy by suppressing dissent, depoliticizing action, and constraining expression. These changes . . . open the door for the state to impose meaning, purpose, and value on groups and their activities.   -John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 10-11 (2012).

Professor Inazu traces the contours of freedom of assembly from the Founding through the antislavery, women’s, and early civil rights movements, ending in the 1950s when the Court began its reliance on freedom of association in NAACP v. Alabama, 357 U.S. 449 (1958). This weaker protection of “association” culminated in the Supreme Court’s approval of a public law school’s policy that obliterated all student groups’ right to require their leaders and members to agree with the groups’ core beliefs in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2012). Professor Inazu characterizes that decision as “lamentable, but . . . unsurprising” in light of “the unprincipled development of the Court’s approach to questions of group autonomy over the past fifty years.” (6)

Professor Inazu argues that a reinvigorated freedom of assembly would, among other things, “extend[ ] beyond political groups to religious and social groups of all kinds,” including dissident groupswhoseaimsareoutside“thecommongood.” By “guard[ing] against restrictions imposed prior to an act of assembling,” freedom of assembly would “protect[ ] a group’s autonomy, composition, and existence.” It would recognize that “the existence of a group and its selection of members and leaders are themselves forms of expression” (152-153).

At first blush, it might seem unlikely that the difference between “association” and “assembly” could account for the Court’s recent roughshod disregard of groups’ foundational right to select leaders and members who share the groups’common viewpoints. Professor Inazu, however, provides solid support for his thesis as well as preliminary thoughts for recovering a robust freedom of assembly.

Religious liberty or discrimination?

The health of religious liberty depends on the choice between two other words. Increasingly, religious groups must explain why it is religious liberty (and common sense), not discrimination, for a religious group to insist that its leaders share its religious beliefs and standards of conduct.Those unfriendly to religious liberty are quick to slap the label of discrimination on a religious group’s efforts to maintain its religious identity. In light of our country’s history, it is a positive thing that most Americans’ immediate reaction when something is labeled discrimination is to deem that thing “bad”.

Nondiscrimination policies certainly serve vital purposes. But to use nondiscrimination policies that are supposed to protect religious citizens to penalize them in reality undermines the essential good such policies serve. Religious groups’ ability to ensure that their leaders share their religious beliefs is basic to religious liberty.

For example, religious organizations must be able to explain why it is religious liberty, not wrongful discrimination,for a church that rents public facilities to reserve communion to those who are baptized into its faith. One Second Circuit judge has opined that this “discrimination” might be an adequate reason for NewYork City to deny a church (Bronx Household of Faith) permission to rent space in a public school. In another example, for the past three years, a large coalition of groups (inaptly named “Coalition Against Religious Discrimination”) has pressured the Obama Administration to deny faith-based organizations the ability to hire based on their core religious beliefs if they provide social services using any federal funding. Thus far, the Administration has resisted this pressure.

Somewhat surprisingly, the Administration recently argued in the Supreme Court that some “discrimination” by religious groups – specifically, the Catholic Church restricting the priesthood to men – was permissible. Most interestingly, and ultimately most damagingly, the Administration located the permissibility for this “discrimination” in the freedom of association, rather than the free exercise or establishment clauses. Forcefully rejecting the Administration’s failure to center the ministerial exception in the Religion Clauses, the Court explained:

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us.  -Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 710 (2012).

While the Court’s opinion in Hosanna-Tabor is masterful, it did not provide much guidance as to when religious groups’ practices are not wrongful discrimination but basic religious liberty.This basic delineation between discrimination and religious liberty is vital and needs to be made not only in legal terminology but in everyday conversations. If the “average” citizen fails to comprehend when the label of “discrimination” is wrongfully applied to religious groups’ efforts to define themselves, religious liberty is at grave risk.

Professor Rick Garnett recently tackled this problem in his piece “Confusion about Discrimination,” (April 5, 2012), in which he observed that “the goings-on atVanderbilt reveal a troubling confusion about ‘discrimination,’ a confusion that, as it spreads, will undermine religious freedom, institutional pluralism, and civil society.” He observes that “[t]he rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law.”

Embracing our government’s foundational truth that all persons are created equal, Professor Garnett nevertheless observes the “obvious point” that “[i]t is not ‘discrimination’ that is wrong; instead, it is wrongful discrimination that is wrong.” Despite its obviousness, the point needs to be made repeatedly in a society that reacts in kneejerk fashion to application of the “discrimination” label.

Professor Garnett then proceeds to the task of distinguishing wrongful discrimination from innocuous or permissible discrimination. It is a useful beginning that merits further development. He would consider the full context of the act that has been labeled as discrimination to determine whether it is wrong and, if wrong, whether the government should act to ban or penalize the particular discrimination. Suggesting several factors for consideration, he would ask whether “the social meaning of the particular decision in question [is] such that it ‘belies the principle that people are of equal ultimate worth’” and whether “the decision [is] one that a ‘limited state in a free society’ has the authority to supervise?”

Too many judges, legislators, and educational administrators have been too quick to forget, in Professor Garnett’s concluding words, that:

[O]ne dimension of the freedom of religion is, sometimes, precisely the freedom to ‘discriminate,’ and that this freedom should be protected not simply because such discrimination is an all-things- considered tolerable wrong – sometimes it is, sometimes it isn’t – but because it is inextricably tied to something good – a human right – and is, sometimes, beyond political authorities’ legitimate reach.


Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.