Professor Michael McConnell on Zubik v. Burwell and the Importance of Religious Liberty

Constitutional law expert and former circuit court judge Michael W. McConnell is a leading authority on freedom of speech and religion, the relation of individual rights to government structure, originalism, and various other aspects of constitutional history and constitutional law. In the following video and Q&A, he discusses the Supreme Court case Zubik v. Burwell, the plight of Christian refugees seeking asylum, and the importance of religious liberty in the United States.

Can you explain the importance of Zubik v. Burwell and the Supreme Court’s instruction on March 29, when it sort of threw the ball back to lawyers on both sides—asking for new proposals on how to spare religious non-profit institutions from providing birth-control techniques for their employee?

This is almost certainly good news for the religious plaintiffs. It suggests (though of course it does not prove) that the Court is not persuaded by the government’s argument in its briefs that the program did not impose a “substantial burden” on their religious beliefs. Most observers thought, before the oral argument, that this was the government’s strongest argument, but during the argument the Solicitor General appeared to back away from it and to focus instead on the government’s interest. Moreover, the instruction suggests the Court is getting into the regulatory detail, which is extremely complicated. This also is likely to be good news for the religious plaintiffs, because there are several straightforward ways the government could accomplish its objectives without imposing any burden on their conscientious beliefs.

You’ve talked about the urgent need for the U.S. to recognize the need for religious asylum of Christians fleeing persecution, particularly from Syria and Iraq. Is there any progress on this?

Not much. We seem to be coming closer to recognizing that the attacks on the Yazidis constitute genocide, which is a good thing. But for reasons not entirely clear the Administration is reluctant to speak out for the Christian minority. Some of the countries in the region are doing what they can, but they are overburdened, to the extreme.

The fourth edition of your casebook, Religion and the Constitution, has just been published. How is religious liberty central to the Constitution—and to America today?

Religious liberty was central at the beginning because so many settlers came to these shores seeking relief from religious oppression. It remains importantdifficult, but importantas religious diversity grows. No longer is America a country of Protestants, Catholics, and Jews, as was thought as recently as the 1950s. Now Buddhists, Hindus, Sikhs, Muslims (of various stripes), Orthodox, Native American, and other persuasions jostle for attention, each with its own traditions and own needs for accommodation.

Michael W. McConnell is the Richard and Frances Mallery Professor of Law and director of the Constitutional Law Center at Stanford Law School, as well as Senior Fellow at the Hoover Institution.