Cameronesque Award: The Family “Research” Council
May 15th, 2009
The Family “Research” Council is engaging in some downright Cameronesque “research” in its latest fundraising appeal. In an email blast with “Save America’s Future” in the subject line, the FRC is begging its members to donate online “to help us stop liberal attacks on life, marriage and your religious liberty.” And what is the greatest danger to your religious:
Repeal of the federal Defense of Marriage Act . . . special rights for homosexuals, lesbians, transvestites, and transsexuals . . . ultimately silencing both pastors in their pulpits and Christian and conservative broadcasters.
And they site a very prestigious name to back up their claim:
Religious freedom? Not for you, if the Harvard International Law Journal is right:
“[S]cholars [are] now suggesting that even core religious practices . . .
can be regulated in the name of equality . . .”
“Regulate” your religious freedom? We can’t let that happen!
But wait a minute, doesn’t the United States still have a First Amendment guaranteeing the free exercise of religion? How did the editors of the Harvard International Law Journal miss that?
It turns out, they didn’t. The article the FRC is quoting from was written by Carolyn Evans and Beth Gaze, scholars at the Centre for Comparative Constitutional Studies, Melbourne Law School, Australia.
That’s right. Australia. The relevant quote — without the ellipses — is this:
On the other side, there is an increasingly powerful movement to subject religions to the full scope of discrimination laws, with some scholars now suggesting that even core religious practices (such as the ordination of clergy) can be regulated in the name of equality. At present, exemptions are given to religious organizations in many non-discrimination laws, but the scope of those exemptions is being reduced in many liberal democracies.
Now most people never bother to look at footnotes. But the relevant footnote are very instructive — as footnotes always are:
 See Pru Goward, Address at the Ordination of Catholic Women Annual Conference, Melbourne: Women, Human Rights and Religion (Nov. 5-6, 2005), available at http://www.ocw.webcentral.com.au/ articles.htm; Cass R. Sunstein, On the Tension between Sex Equality and Religious Freedom, Public Law and Legal Theory Working Paper No. 167 (2007), available at http://www.ssrn.com/ abstract_id=995325; Cf. Reid Mortensen, Rendering to God and Caesar: Religion in Australian Discrimination Law, 18U. Queensland L. J. 208, 219 (1994-1995).
 See, e.g., anti-discrimination laws in the U.S. and the U.K.: Civil Rights Act of 1964 §§ 702 and 703, 42 U.S.C. § 2000e-1 and 2000e-2; Equality Act 2006 (U.K.), §§ 50 and 57-60; Employment Equality (Religion or Belief) Regulations 2003 (U.K.) §§ 7 and 25.
 For example, in 2000 a European Directive (Council Directive 2000/78/EC of 27 November 2000) was issued that created quite strict limitations on the ability of EU member states to grant exemptions from anti-discrimination laws to religious employers.
Notice what’s happening. There are three scholars (two in Australia and one in Chicago) who believe that the state ought to regulate “core religious practice.” There are, of course, other scholars not cited who believe the opposite, and can back up their beliefs as well. But that doesn’t mean a court will go along with it.
The authors also cite the European Union in as attempting to impose such regulations. But the authors cite the United States as holding a body of laws which preserve religious freedom.
And when the authors go on to examine “core religious practice” (i.e. “selection and training of clergy, the language and symbolism of ritual, and the determination of membership of the religious community”) they conclude that religion enjoys a special claim to being exempted from the kinds of regulation that the FRC would have us fear.
It’s been a while since we awarded a Cameronesque award to anyone. But it’s been a while since we’ve seen such an outrageous example of misuse of the professional literature. The Family “Research” Council is now a two-time winner.