The wedding cake on display at Masterpiece Cakeshop.
AP Photo/Brennan Linsley
On Tuesday, Dec. 5, a visibly divided U.S. Supreme Court tackled the contentious issue of religious freedom when it heard oral arguments in “Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.” The arguments appeared to evenly split the four conservative justices from the four liberals. Justice Anthony Kennedy, who is often a swing vote, seemed to side with the baker.
The case involves a Denver bakery owner who refused to make a wedding cake for a gay couple, citing his religious belief that marriage can be between only a man and woman. The couple sued, and a lower court ruled the baker violated Colorado’s public accommodations law. The statute forbids discrimination by businesses serving the public, including on the basis of sexual orientation.
In their appeal to the Supreme Court, the bakery’s lawyers have emphasized free speech issues by presenting the baker as an artist who has a right to choose how he expresses himself. But religious freedom remains central to the case. A key question is whether a business owner must provide services that conflict with his or her religious beliefs.
This divisive case highlights the vast difference between the reality and the rhetoric of religious freedom, which is often considered to be the ideal that promotes harmony and equality. But, history suggests that it does lead to more conflict.
The rhetoric: Equality and goodwill
It is true that throughout U.S. history, Americans have idealized religious freedom and imagined that it brings harmony.
The First Amendment’s clauses guaranteeing religious free exercise and preventing establishment of an official church seemed to promise less discord to the Founding Fathers. In an 1802 letter, Thomas Jefferson, for example, wrote that “religion is a matter which lies solely between Man & his God.” As the nation’s third president, he argued that a “wall of separation between Church & State” would give all people equally the right to free conscience.
Later presidents echoed the view that religious freedom brings equality and unity by preventing government from favoring particular faiths.
Before his election in 1960, John F. Kennedy tried to ease fears about his Catholicism by affirming religious liberty. Kennedy believed this freedom kept one group from oppressing another. It formed the basis of a society, he declared, where people would “refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideal of brotherhood.”
In the early 1990s, George H.W. Bush identified religious liberty as the basis for other rights. He credited it as a major reason for the vibrancy of American society.
The reality: Conflict and debate
Minority communities, ranging from Catholics to Mormons, have fought to have their traditions and customs recognized as religious. As I show in my work on pluralism, Americans have debated what constitutes a religious expression rather than a cultural practice. People have also argued whether religious expression can extend into political, social and business interactions.
These debates have required the intervention of the courts and have often ended at the Supreme Court. Thus, a right intended to free Americans from government has instead necessitated frequent involvement of a major government institution.
Further complicating matters, the Supreme Court has changed its position over time. Its evolving interpretations show how religious freedom debates create shifting categories of winners and losers.
To the courts
Like Masterpiece Cakeshop, one of the Supreme Court’s first religious liberty cases involved marriage. In 1878, a Mormon resident of the Utah territory sued the federal government after he was charged with bigamy. He argued that the law violated his religious liberty by criminalizing his polygamous marriage. The Supreme Court disagreed. In Reynolds v. United States, the court ruled that the First Amendment guaranteed only freedom of belief, not freedom of practice.
In the 20th century, the Supreme Court showed greater sympathy to religious liberty claims. In several cases – including one brought by Jehovah’s Witnesses challenging a statute requiring a permit for public evangelizing and another by an Amish community that objected to Wisconsin’s compulsory public school law – justices sided with those who claimed their freedom was violated.
That changed in 1990. The court ruled against two men who lost their jobs after using peyote, the cactus, which has hallucinogenic properties and has long been used in Native American religious practices. Because they were fired for drug use, the men were denied unemployment benefits. They claimed that as members of a Native American church, they used the drug for religious purposes.
Moving away from earlier decisions, justices ruled that religious belief was not a ground for refusing to obey laws “prohibiting conduct that the State is free to regulate.”
New century, new conflicts
The peyote case set the stage for Masterpiece Cakeshop. It was in response to the case that Congress passed the Religious Freedom Restoration Act (RFRA) of 1993. It required that laws restricting religious expression must show that they serve a compelling need.
RFRA was central in the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby. That contentious split ruling allowed small, closely held companies the right to deny contraceptive benefits mandated by the Affordable Care Act on the grounds of protecting their owners’ religious liberty.
Similarly, in October 2017, the Trump administration invoked freedom of religion when it allowed all employers a religious exemption to the contraception coverage requirement in the Affordable Care Act.
Critics saw that policy change as an attack on women’s rights. Reaction to it on both sides again showed that government involvement in debates about religious freedom invariably produces winners and losers.
Given our polarized society and the division among the Supreme Court justices today, this pattern will continue, whatever the verdict is.
This is an updated version of an article first published on Nov. 28, 2017.
Race-neutral affirmative action can help identify first-generation students like Blanca Diaz and LaQuintah Garrett.
AP Photo/Amy Anthony
In 2003, Justice Antonin Scalia predicted that the Supreme Court’s sanctioning of race-conscious affirmative action in higher education would spark future litigation for years to come. And right he was. From defeated claims of discrimination against the University of Texas at Austin to an ongoing lawsuit against Harvard, colleges continue to come under attack for considering race as a factor in admissions decisions.
The recent report of the Department of Justice’s possible investigation of “intentional race-based discrimination in college and university admissions” demonstrates that the assaults aren’t likely to end anytime soon.
As a professor of law and scholar dedicated to ensuring equal educational opportunities for students of color, I believe now is an important time to earnestly consider other methods for diversifying student bodies. Race-neutral alternatives could effectively consider such factors as socioeconomic status and educational background, while supplementing more traditional affirmative action.
‘Race-based’ vs. ‘race-conscious’
When thinking about affirmative action, it’s important to first define (and debunk) a few key terms, starting with “race-based” and “race-conscious” affirmative action.
“Race-based affirmative action” is a misnomer often used to describe some college admissions policies. “Race-based” implies that an admissions decision is made solely because of or based upon an applicant’s race or ethnicity, which could not be farther from the truth. A university’s decision to admit, deny or waitlist an applicant is based upon myriad criteria, ranging from standardized test scores to state of residency. Race is just one of many admissions factors a university may consider.
This approach is more appropriately termed “race-conscious.”
Schools that employ race-conscious admissions policies do so in order to achieve the educational, social and democratic benefits of a diverse student body.
As the Supreme Court held in Gratz v. Bollinger, race is not and cannot be the determining factor under a constitutional race-conscious plan. Therefore, when people claim that an African-American or Hispanic student was admitted because of race, they’re often not only inaccurate but also dismissive of the student’s other numerous attributes that played a role in the university’s decision.
Opponents of race-conscious affirmative action often assert that such policies are racist or disproportionately benefit privileged minority students from middle- and upper-class backgrounds.
For its part, the Supreme Court is also skeptical of using racial classifications in governmental decision-making. As a result, it has held that institutions of higher education must afford serious consideration to “workable race-neutral alternatives” before implementing a race-conscious policy.
Importantly, the court’s use of the term “race-neutral” does not mean “race-blind.” That is, universities are permitted to think about how alternative admissions criteria could help them achieve their diversity goals. Race-neutral criteria could include socioeconomic background, high school or undergraduate institution, or class rank. In other words, these are factors that may contribute to a school’s racial diversity, but applicants themselves are not considered based on race.
In some cases, it’s proven difficult for race-neutral admissions policies to achieve the same levels of racial diversity as those achieved through direct consideration of race. However, such measures have been useful in helping to diversify student bodies when used in conjunction with or in lieu of race-conscious affirmative action.
The viability of race-neutral alternatives
When coupled with the stark racial disparities that continue to plague some professions, the uncertain future of race-conscious affirmative action calls for a renewed focus on alternatives that look beyond race alone.
Law schools play a unique role in training our country’s next generation of leaders. It is, in fact, vital to the future of our democracy that we continue to provide students from historically underrepresented racial groups with access to legal education. And yet, the legal profession was recently determined to be “one of the least racially diverse professions in the nation.”
To help law schools improve their diversity, we examined the relationship between race and race-neutral identity factors in law school admissions. The project, which was funded in part by a grant from AccessLex Institute, surveyed over a thousand first-year law students at schools throughout the country and asked about various aspects of their identity, such as socioeconomic status and educational background.
Our findings indicated that African-American and Hispanic students were significantly more likely than both white and Asian/Pacific Islander students to have qualified for free or reduced lunch programs in elementary or secondary school, had a parent or guardian who received public assistance when the student was a dependent minor, and received a Pell Grant during their undergraduate studies – all of which are race-neutral factors that schools could consider in admissions decisions.
How admissions could change
Based on the sample of participants in our study, it’s clear that privilege did not catapult all students of color to law school. Many of them had to overcome the structural inequalities of poverty, race and public education to embark on a legal career. Expanding opportunities for these and other minority students will benefit not only legal education and the legal profession, but also society more broadly.
Race-neutral admissions policies could help identify and create opportunities for these students.
To be clear, I do not advocate for the wholesale substitution of traditional race-conscious admissions measures with the factors we studied. Race-conscious policies continue to be the most effective means by which to create diverse student bodies.
However, we encourage law schools and other institutions of higher education to utilize these and other race-neutral admissions factors as a means of complying with the Supreme Court’s affirmative action mandates and testing the viability of policies that take such factors into account.
Doing so will help ensure that traditionally underrepresented students of color will continue to have access to colleges and universities that serve as gateways to career, financial and life opportunities.
Protesters carry signs during a march for science Saturday, April 22, 2017, in Denver.
AP Photo/David Zalubowski
What can those armed with facts – like scientists, professionals and knowledgeable citizens – do to shape policy?
In April, scientists and their supporters took to the streets. The March for Science was a public defense of science as an invaluable part of society and policy. We, as academic scientists, were among them. When everyone returned to their labs and offices, we saw our fellow marchers search for ways to build on the momentum.
One of the most accessible options to do so is the federal public comment process.
What is public comment?
Public comment subjects federal policies to peer review. Scientists and other professionals can use public comment to ensure that policy is based on the best available evidence, vetting the science behind regulations.
When Congress passes a law, it provides a framework for federal agencies on how to implement it. Figuring out the details of implementation is usually up to the agency by making rules and regulations. Since 1946, the Administrative Procedures Act has required that each new rule be subject to public comment, giving citizens the chance to comment on and change the proposed rule before it becomes legally enforceable. Proposed and final rules are all published in the Federal Register, a publicly accessible online government database.
The act also ensures that agencies cannot ignore these comments by requiring the agency to respond to all “material” comments. This qualifier is critical. For an agency to respond to the comment, it must be unique and fact-based, such that it could “require a change in [the] proposed rule.”
You may have already encountered a public comment if anyone has asked you to submit a prewritten letter regarding a proposed rule. These “form letters” are written by organizations – often nonprofits – and then a copy is signed and submitted by a large number of people. While agencies may note the impressive response a proposed regulation triggers, these form letters are legally considered a single material comment.
Yet form letters often make up a large percentage of comments received. For example, in 2004, the EPA was in the process of making a rule that would reduce emissions of mercury from coal-fired utility units. The majority of comments on this proposed rule submitted through MoveOn.org were duplicates of the same two-sentence form letter or slight variants of a broad claim about the inadequacy of the proposed rule. This meant that the EPA received little real information to which it had to respond.
Form letters are popular because they are easier than writing a unique, fact-based comment. But scientists and other professionals often have the knowledge required to do so. They are trained to read and summarize evidence from a variety of sources. They are also familiar with the general principles of subject fields like ecology, economics or nutrition, which are recurring themes across many regulations.
Federal agencies need the expert information that scientists and professionals can provide. An analysis by the U.S. Forest Service found that the majority of public input was value-based. While these comments provided agency employees with critical information on public opinion, value-based comments were not as helpful to the planning staff as detailed comments that provided technical feedback. Only 9 percent of the comments sampled were classified as having a high level of detail.
Why should scientists engage?
Public comment allows for flexibility. With an online submission portal, it doesn’t require participants to be in a certain place to have input. Its consistency across federal agencies avoids the need to reacquaint oneself with agency-specific processes. Perhaps most importantly, it allows for public participation, opening the process to scientists and professionals across sectors and career stages without a personal contact or advisory position at the agency.
This isn’t to say that there are no barriers. For example, proposed regulations are often filled with jargon and organized in unclear ways. But there are sources designed to coach you through the process, including Regulations.gov. Material specifically oriented toward helping scientists and other professionals is available through the Public Comment Project, a website that we created with other colleagues and maintain. It includes how-to guides and helps you find rules of interest that are open for comment.
Has it made a difference?
Changes to rules as a result of public comment happen often. For example, in a 2016 proposed rule by the Centers for Medicare Medicaid Services, the agencies expanded the definition of “patient” in the final rule. The expansion was in response to comments by the Midwest Health Initiative and the American Hospital Association, among others. This effectively changed the scope of data that could be extracted for providers, suppliers, hospital associations and medical societies.
Or, take a National Marine Fisheries Service proposed rule to designate critical habitat for a marine snail, the black abalone. A comment written by one of us expanded the critical habitat designation so that all life stages of the species would be covered.
A formal analysis on a 1992 Environmental Protection Agency proposed rule on certain cancer-causing pesticides found that the agency was was more likely to bar the use of a particular cancer-causing pesticide when faced with evidence of high risk to human health or the environment. Public comment by environmental advocacy groups increased the probability of cancellation.
Why comment now?
Experts, from scientists to professionals, have an increasingly important role to quality-check the research that makes its way into policy – see, for example, this statement by the American Association for the Advancement of Science, one of the world’s largest scientific societies. Although the devaluation of science in public policy is a long-term issue, it has recently escalated rapidly. A few of the most recent examples include the removal of climate change-related data and research from government websites, proposed reduction in federal budgets for science including the complete removal of certain programs like NOAA’s Sea Grant, and the request of agencies for scientists to censor their language.
Responding to a call for public comment is one way to check the facts that make up public policy. We call all scientists, professionals and knowledgeable members of the public to apply their specific expertise to this process.
Mary Fisher, M.S. Student, Aquatic and Fishery Sciences, University of Washington; Natalie Lowell, Ph.D. Candidate in Fisheries Science, University of Washington; Ryan Kelly, Assistant Professor, Marine and Environmental Affairs, University of Washington, and Samuel May, Graduate Student in Fisheries Science, University of Washington