Mirror of Justice

Oscar Watch

On the heels of Mary Leary's powerful reminder of how our culture of celebrity worship can obscure and undermine our vision of the dignity of the person (particularly of women), I sort of hate to admit where I've spent last Saturday  & will be spending tomorrow -- my traditional best-picture Oscar nominee movie watching marathon with my son.  But, that being said, here are a couple of random observations about Catholic (and even one legal) aspects of this year's nominees.

First, my son & I both agree that this year's slate of nominees is remarkable for its relative wholesomeness -- many of the movies focus on the importance of the bonds of love, and the overwhelming importance of families in our lives.  Though many of the families portrayed are broken in various ways, the brokenness tends to be acknowledged by the characters as a bad, rather than celebrated as a good, and the ideal of the family toward which so many of the characters are striving in these movies tends to be something very compatible with the Catholic notion of family.

Second, though Tree of Life does appear to be profoundly suffused with Catholicity -- except maybe towards the end where I think it might veer into new-agey-ness (though one of my students who is currently exploring entering the Benedictan order disagrees with me there), I think it's a terrible movie.  It might be a great graduate school seminar, but it's a tedious movie.

Third, I enjoyed The Descendents much more than I expected.  I was entranced by the movie's theme of stewardship and our responsibility for what (and whom) we are given to care for in this world.  And what Catholic lawyer wouldn't be tickled by a movie that uses the Rule Against Perpetuities to help make the point that the things (and people) entrusted to us are given to us for a limited time?

Fourth, The Artist is a perfect jewel of a movie.  Yes, it's a silent, black & white movie.  But it's a magnificent piece of art, and utterly, thoroughly charming.

Finally, what Oscar-related post of mine would be complete without a reference to the nun who kissed Elvis, Mother Dolores, the Hollywood starlet who gave up fame and her fiance to answer God's call to the cloistered life of the Benedictine Abbey of Regina Laudis?  Well this year, she's going to actually be at the Oscars!  Her story is the focus of an Oscar-nominated best documentary short film:   God Is the Bigger Elvis.  Oh, wouldn't it be a grand site to see her striding down that Red Carpet in full habit?

A Different Spin on Dignity, the Church, and the Government

There has been much discussion lately, deservedly so, of the need for the government to reflect a level of morality, or at least respect deeply held religious beliefs with respect to fundamental issues of life. Indeed, much of the discourse regarding threats to religious freedom in the last several weeks has included dialog around women, their rights, their dignity, and the dignity of all life. This is an important discussion in which we see tension between media messaging, governmental actions, and some of the teachings of the Catholic Church.

I would like to turn that discussion to another area. Here the government's criminal law and the Church stand together. If this week is any example, together they wage a battle, perhaps a losing one, with our culture of violence. This too involves issues of dignity, autonomy, and life itself – it is the dark world of domestic violence.

The Commonwealth of Virginia finds itself the setting for two dramatic domestic violence sagas. The Commonwealth and all of metropolitan Washington have been following the trial of George Huguely who was convicted this week of second degree murder for the killing of his former girlfriend and fellow University of Virginia classmate, Yeardley Love. In so doing, the jury concluded that Huguely caused her death by blunt force trauma to her head after he violently put a hole through her bedroom door and physically attacked her. His statement to the police, while minimizing the violence, included an admission to kicking in her door, shaking her, and holding her to the floor to "calm her down." The case included a history of violence and threats by Huguely against Love. Consequently, it has been a "teaching moment" for parents of young girls about the dangers of domestic violence and the realities of the often overlooked area of teen dating violence. This tragic story has been a reminder of need to recognize the signs of a violent relationship and to intervene to protect the victim.

This is an area on which the Church and the government stand together. The state condemned the defendant's actions and pursued justice against Huguely despite his privileged life. If Henry Hart is correct and a conviction is "the moral condemnation of the community," the jury did so as well. In 1995, John Paul II in his Letter to Women clearly condemned violence against women as an affront to their inherent dignity.

When it comes to setting women free from every kind of exploitation and domination, the Gospel contains an ever relevant message which goes back to the attitude of Jesus Christ himself. Transcending the established norms of his own culture, Jesus treated women with openness, respect, acceptance and tenderness. In this way he honored the dignity which women have always possessed according to God's plan and in his love. As we look to Christ at the end of this Second Millennium, it is natural to ask ourselves: how much of his message has been heard and acted upon?

Well, if the other Virginia story is any measure, not much of this message has been heard.

Virginia also is the home of popular singer Chris Brown, currently in the middle of his 5 year probation for felony assault of his then girlfriend, the even more popular singer, Rihanna. In 2009 he pled guilty to severely beating her which, according to the search warrant affidavit in the case, included attempting to force her from a vehicle, shoving her head against a window, repeatedly punching her in the face, biting her, choking her to such an extent that she began to lose consciousness, and threatening to kill her. Again, here the government stood behind the dignity of women by pursuing felony criminal charges against Brown, notwithstanding his prominence. Yet half way through that probation, the Grammy's have featured him and honored him. Furthermore, he and Rihanna have leaked remixes of songs in which they collaborate together. Rihanna's remix is particularly disturbing, and too explicit for this blog. Suffice it to say NPR described the lyrics as "blurr[ing] the line between pleasure and pain, and could be interpreted as alluding to Brown's assault of her."

From this carnage, parents attempt to act upon John Paul II's 17-year-old message and resurrect a teaching moment. Such a moment can lead to powerful opportunities to help protect girls from the dangers of domestic violence, to help them recognize that it affects even the most famous and privileged, and to engage bystanders in appropriate responses. However, the culture provides an alternative message. These two extremely popular performers (not to mention the industry behind them) contribute to a different dispatch to their teen followers: rather than end the violent relationship – continue collaborating, dismiss the violence against women, exploit the scandal, and reinforce gendered stereotypes that suggest such violent assaults are at best excusable and at worst somehow the fault of the victim. Given this kind of culture, is it any wonder that a college student quoted in the NPR story referred to this recent collaboration as indicating "love?" Even more disturbing, teens assembling for a fall 2011 Brown concert in Baltimore, Maryland blamed the "incident" on Rihanna's. Baltimore…not far from where Yeardley Love attended high school. No doubt several will wonder, what is the harm? One measure of the result of this social messaging is this: after the Grammy win- several documented tweets from young women stating, "Chris Brown can beat me."

So as we wrestle with these tensions between government and people of faith, it is a reminder that, even when on the same side of an issue, such solidarity is not enough to affect change. We must also combat the social messages that perpetuate the lack of dignity afforded to all. February's role as Teen Dating Violence Awareness Month is brought all the more sharply into focus with these examples of how far our society still has to progress in order to ensure the life and dignity of our young women. Perhaps we would do well to remember and share John Paul II's words in Mulieris Dignitatem, that "woman cannot become the "object" of "domination" and male "possession.""

 

 

Another District Court Finds DOMA Unconstitutional

Yesterday, Disctrict Court Judge Jeffrey White granted the plaintiff's summary judgment motion and ordered OPM to enroll the same-sex spouse of a federal court employee in its benefit program in a 43-page opinion finding DOMA to be unconstitutional on equal protection grounds. White was a George W. Bush appointee.

See http://seattletimes.nwsource.com/html/nationworld/2017573133_gaymarriage23.html and --- F.Supp.2d ----, 2012 WL 569685 (N.D.Cal.)

HHS vs. OWS: On the Prudence in First Amendment Jurisprudence

One of the loveliest upshots of that Friday and weekend work with the New York Fed that I mentioned two days ago has been the opportunity that it has afforded to spend time with, get to know, and ultimately join some of the banking and economic policy committees of the OWS movement.  (Zuccotti Park is but two blocks from the Fed and my little Wall Street apartment.)  In this connection, like very many people across America and the world, I thought Mayor Bloomberg's 'crackdown' on the movement this past November wrong-headed.  One upshot of that conviction was this OpEd published in the New York Daily News at the time, a longer rendition of which was posted on Dorf on Law here. 

It strikes me now that there is an instructive analogy to be drawn between that case and the case of the first rendition of the HHS's mandate - 'Mandate 1.0' - that we've all discussed here over the past several weeks.  The link has to do with the 'prudence' one might hope to find in such government actions as sometimes implicate First Amendment jurisprudence or the values given expression in that jusrisprudence.  Pursuant to this prudence, wise government functionaries accommodate exercises of First-Amendment-implicating freedoms even when not, strictly speaking, constitutionally required to do so.  Why do we hope, as I put it, to find this form of prudence in government decisions?  I think there are are least two complementary reasons.  One is that our political society at large often learns much from that 'witness' which is the flowering and flourishing of 'alternative' takes on many practices and lifeways that majorities have come to take for granted.  Another is that individual citizens often grow and flower as human souls both through witnessing and through participating in such experiments - recapitulating, in their less fateful and momentous but nevertheless important ways, the transformative experience of the 'upper room.'   

For my part, I've found the inspiringly earnest, insistently pluralistic, and above all the determinedly democratic egalitarian culture that flowered in Zuccotti Park a particularly salutary case in point - so starkly so that I very much hope those who are reading this post will read the descriptions provided in the two articles linked to above.  (The full length version at Dorf on Law includes brief description of the 'Tree of Life' at which multiple faiths were officially represented and honored in Zuccotti, including that of the many members of the Catholic Worker movement who were present throughout the 'occupation.')  But likewise important cases in point are, quite often, the lifeways and worldviews lived and given 'witness' by the healthcare-providing, education-supplying, and other institutions founded by our many faith communities.  Hence my provisional welcoming, along with that by many others, of the HHS's recent announcement that Mandate 2.0, once more fully specified, will indeed be accommodative.  I await that further specification as eagerly as I do the return of the 'Occupiers' to Zuccotti Park come this spring.   

 

On the Importance of Vatican City

David Quinn writes, in The Independent:

Many people no longer seem to have a clue why the Catholic Church should also have a state that is called the Holy See. Some of us seem to imagine it is purely for reasons of vanity.

But only someone lacking the faintest knowledge of church history could think such a thing because all down the centuries rulers have sought to bend popes to their will. . . .

The Judge ("Blood Meridian") on statism and the freedom of the Church

Well, not explicitly.  But, it sure fits (from Ch. 14): 

“The judge placed his hands on the ground.  He looked at his inquisitor.  This is my claim, he said.  And yet everywhere upon it are pockets of autonomous life.  Autonomous.  In order for it to be mine nothing must be permitted to occur upon it save by my dispensation.”

Doesn't that last sentence capture pretty well the attitude of a certain kind of illiberal, monist liberalism?

Plaintiffs Win Free Exercise Challenge to Washington Plan B Pharmacy Regulations

In a challenge to Washington State's requirement that pharmacists dispense Plan B even where a pharmacist has a religious objection to doing so, the federal district judge ruled today that the pharmacy regulations were neither neutral nor generally applicable and could not survive strict scrutiny review. Judge Ronald Leighton's opinion is here, and the Becket Fund's press release is here

On the Uses of the Epigraph

"Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?"  That is the question Professor Richard Pildes asks over at Balkinization.  The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year -- a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision.  In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.

I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as "authority" for a constitutional decision, at least unless the modifier "persuasive" is added.  But even "persuasive authority" is not quite right.  The body of Judge Calabresi's concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the "authority" for his opinion.  In his post, Prof. Pildes describes the use of the epigraph as providing "normative support" for Judge Calabresi's views, and this seems closer, though also not exactly right.

I have always thought that epigraphs are not argument.  They are not even suggestions of argument.  Their function is to orient the reader obliquely toward a certain mood or manner of thinking.  In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority.  "Authority" is hardly the point.

All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.   

Sharia and claims of conscience

Yesterday I wondered whether we were going to start seeing the "Sharia" label attached to any request by a religious believer for conscience-based exemptions from generally applicable laws.  Apparently that train has already left the station.  Consider this statement:

"Religious rules should end ‘at the door of the temple’ and give way to the ‘public law’ laid down by Parliament.”

“To me, there’s nothing different in principle with a Catholic adoption agency, or indeed Methodist adoption agency, saying the rules in our community are different and therefore the law shouldn’t apply to us. Why not then say sharia can be applied to different parts of the country? It doesn’t work,” he added.

And who's the "he?"  Must be some guy sitting in his basement writing a blog post for an audience of three, right?.  He couldn't be the chairman of the British Equality and Human Rights Commission, could he?

Miller on cooperation and culpability

At Public Discourse, Robert Miller makes well a point I've been trying to figure out how to make, and does so better than I would have.  (So, check it out.)  Nutshell version:  Assuming that a Catholic institution could, given all the givens, non-culpably comply with the mandate (whether what Brother Hockett calls "Mandate 1.0" or the floated-but-not-yet-existing "Mandate 2.0"), it does not follow that the mandate is unobjectionable, or not inconsistent with a commitment to religious freedom.  As Miller puts it:

. . . The fundamental problem with the contraception mandate is not that complying with it involves objecting employers in moral wrongdoing. At least for some employers, it may well do that, and this certainly makes the mandate morally objectionable, but this is not the fundamental problem. The fundamental problem with the mandate is that it coerces some people into doing what they think is wrong, and this problem remains regardless of whether the coercion excuses the actions of the people being coerced.

Where are the Women on the Mandate? Hear Some of us Roar!

As Helen Alvere and Kim Daniels explain on National Review Online:

 . . .over the past several days we’ve heard House Minority Leader Nancy Pelosi and others repeatedly ask those who oppose the contraceptive mandate, “Where are the women?”

Here we are.

We listened to prominent women purport to speak for us. We watched them duck the fundamental religious-liberty issues at stake. And we saw them assume that all women view cheaper contraceptives and abortion-causing drugs as unqualified goods.

In response, we circulated an open letter to a few dozen of our female friends in support of the competing voice offered by Catholic institutions on matters of sex, marriage, and family life. The letter spread, and in 72 hours we received some 750 signatures from a diverse group of women across the country, including women serving overseas. Signatures are still flooding in. Doctors, nurses, lawyers, teachers, mothers, business owners, community volunteers, scholars — women from all walks of life are proud to stand together with the Catholic Church and its invaluable witness.

I was one of the 750 woman signing on to this letter from the beginning, though my  name hasn't yet made it onto the website. More from the letter.....

Those currently invoking “women’s health” in an attempt to shout down anyone who
disagrees with forcing religious institutions or individuals to violate deeply held beliefs
are more than a little mistaken, and more than a little dishonest. Even setting aside their
simplistic equation of “costless” birth control with “equality,” note that they have never
responded to the large body of scholarly research indicating that many forms of
contraception have serious side effects, or that some forms act at some times to destroy
embryos, or that government contraceptive programs inevitably change the sex, dating
and marriage markets in ways that lead to more empty sex, more non-marital births and
more abortions. It is women who suffer disproportionately when these things happen.

Another great contribution to this "roar" is Erika Bachiochi and Catherine Pakaluk's article questioning just how good the Pill has really been for women:

And this points to an unresolved difficulty with the contraceptive revolution, which was supposed to serve women above all: Women on the whole disproportionately bear the burden of the new sexual regime. They are expected to dose themselves with a Group 1 carcinogen for approximately two-thirds of their fertile years. They sustain greater emotional costs from casual sex. They are at greater risk of contracting STDs and disproportionately suffer from their long-term consequences, such as cervical cancer and fertility loss.And even after 50 years with the Pill, as many as half of all pregnancies are still unintended. Women, not men, must make the heart-wrenching choice between abortion, reckoned a tragic outcome even by its supporters, and bearing a child with little to no paternal support. After all, since children were negotiated out of the bargain by the availability of contraception and abortion, men have secured a strong rationale to simply ignore or reject pregnancies that result from uncommitted sexual relations. Nobel-laureate economist George Akerlof predicted nearly two decades ago that this would lead directly to the feminization of poverty, as it ruefully has.

Supreme Court of Canada rejects parental opt-out claim

The Supreme Court of Canada has rejected the claim that the refusal of the school board to allow an exemption from the controversial Ethics and Religious Culture Program voiolates the rights of the parents who sought to exempt their children from the ERC program. The case, S.L. v. Commission scolaire des Chenes, is basically the Canadian version of the Mozert case. The parents argued that the program, which they contended promoted relativism, interfered with their ability to control the education of their children. The Supreme Court of Canada concluded that the mere exposure of the children to the program did not infringe their freedom of religion because the children were not forced to join any of the religions discussed in the program.

Richard M.

Tweet of the day

Matt Yglesias, a respected blogger and writer for Slate, offered this "tweet" yesterday:

Newfound GOP enthusiasm for religious exemptions from generally applicable laws seems dangerously close to sharia.

Judging from his past writing, my guess is that this was a tongue-in-cheek jab at GOP candidates' disturbing tendency to use the "Sharia" label as a punching bag on the campaign trail.  I fear, though, that it is a harbinger of sincere arguments to come, as reasonable, right-thinking folks are asked to line up in either the Enlightenment camp or the Theocracy camp.  Nuance may be in short supply.

Alabama Supreme Court on Roe v. Wade

On February 17, 2012, the Alabama Supreme Court decided Hamilton v. Scott. The case involved an interpretation of Alabama's wrongful death statute. The Court held that Amy Hamilton had a claim under the statute even though her unborn child died before viability. The most interesting aspect of the case is a special concurrence written by Justice Parker. The concurrence presents an extended critique of Roe's viability standard. Here is the conclusion:

"Roe's viability rule was based on inaccurate history and was mostly unsupported by legal precedent. Medical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development. And together, Alabama's homicide statute, the decisions of this Court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun's words, "reluctant ... to accord legal rights to the unborn." For these reasons, Roe's viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court."

David Smolin comment on the opinion is instructive. Smolin noted--"It is philosophically, morally and ethically problematic to consider a human as a person for some things and not for others. It makes us uncomfortable with elective abortion. The more places where the law puts them as a human person, the more it makes us think about what we are doing with abortion."

Richard M.

Assisting Families by Preventing Avoidable Home Foreclosures: The Home Mortgage Bridge Loan Assistance Act of 2012

Last week I mentioned I'd been in Albany and for that reason had to take a bit more time to give Robby's and Sherif's Morals and Mandates the time and attention it deserved.  Having spent a fair bit of time on that forceful piece now, I'd like briefly to return to the subject of that Albany trip.  For that trip, too, was  concerned with a matter that is as fully a matter of the Church's concern as are its schools and hospitals and their expressive/magisterial freedom - viz. families and their homes. 

As some of our readers might know, I moonlight on Fridays and weekends at the New York Fed, an involvement which stems from my academic involvement in monetary and financial law both domestically and globally considered.  A large part of that bailiwick, in turn, is occupied these days by attention to the all-important mortgage markets - and, less coldly and bloodlessly, the families that owe mortgage debt in those still troubled markets. 

In the wake of the bubble and burst that culminated in 2008, as we know, many American families have been left with mortgages that are 'under water.'  That is to say that their debts, denominated as they are at fixed rates, have not plummetted as have the variable rates of their market-valued homes.  This in turn means that many families will be faced with near-bankruptcy and possible foreclosure unless and until some form of mortgage-restructuring, probably involving principal write-downs accompanied by shared-appreciation agreements and capital-regulatory forbearance, can be done on a larger scale than HARP, HAMP, and other initiatives thus far have proved able to do in the face of creditor collective action problems. 

Such is one upshot of Dan Alpert's, Nouriel Roubini's and my Way Forward white paper to which Rick kindly drew readers' attention last October when Joe Nocera discussed it in his NYT column.  And so, much of what I do these days concerns how we might set about that large, formidable task as described in The Way Forward. 

As it happens, however, there also are many mortgages faced with possible foreclosure that has little to do with 'underwater' status or any other difficulty other than temporary un- or under-employment of the sort that we often experience in times of macroeconomic slump.  Because all it takes is 60 days' delinquency to trigger default and foreclosure on many mortgage contracts, mortgagors who are temporarily laid off or partly laid off can, with their families, find themselves suddenly faced with loss of a home through little if any fault of their own notwithstanding their general creditworthiness. 

The harms that these innocent people face, moreover, ultimately redound to the harm of their lenders, their neighborhoods, the home and mortgage markets and the broader macro-economy as well.  Rigidities introduced by the lending contracts, moreover - particularly those that are securitized - typically prevent even value-maximizing forbearance or adjustment on the part of servicers.  We are accordingly faced with a classic market failure that harms all concerned parties.

Against this backdrop, a colleague - Michael Campbell - and I have drafted legislation inspired by a highly successful Pennsylvania program that comes down to us from back in the great Robert Casey days.  We call ours the Home Mortgage Bridge Loan Assistance Act (HMBLAA). 

Pennsylvania's Home Emergency Mortgage Assistance Program (HEMAP), upon which HMBLAA is loosely patterned with the benefit of hindsight, has a near 30-year track record of keeping lenders paid, families in their homes, and the public fisc almost entirely unaffected.  It has managed this simply by extending temporary bridge loan assistance to families whose breadwinners are temporarily unemployed or underemployed through no fault of their own, which loans are repaid in full once employment resumes.  It is made to order for times of temporary slump like the present.

Michael's and my plan incorporates many administrative lessons learned from the HEMAP experience.  The New York City Bar Association - on whose Banking Law Committee we both sit, Michael as Chair - and now the New York State Bar and the New York State Bankers Association all now have come down in support.  Our hope, as well as our now increasingly reasonable-looking belief, is that not only New York, but other states too, as well as Congress, will soon pass HMBLAA and/or counterpart legislation much like it.  It could work very well in states like Ohio, Indiana, and others disproportionately hit by the nation's current economic woes.   

Michael and I have received much in the way of helpful suggestion from private and public sector lawyers and financiers alike in the process of developing this proposal, but can always do with more.  I hope, then, that interested readers might click on the links below and let me know what they think.  The first link is (once again) to the statute itself.  The second is to a white paper we've drafted in support of the statute, complete with a regulatory impact analysis conducted by colleagues at the Fed.  Please let us know what you think!

The Home Mortgage Bridge Loan Assistance Act of 2012

HMBLAA White Paper 

Thanks again to all.  

More conflicts to come?

Potential conflicts between religious institutions and mandated health coverage are not limited to the area of reproductive rights.  The Washington Post, for example, reports on a growing area of clinical medicine:

A small but growing number of teens and even younger children who think they were born the wrong sex are getting support from parents and from doctors who give them sex-changing treatments, according to reports in the medical journal Pediatrics. . . .

Discussing one particular case, the article recounts:

Private schools refused to enroll him as a boy, and the family’s pediatrician refused to go along with their request to treat him like a boy. They found a physician who would, Dr. Jo Olson, medical director of a transgender clinic at Children’s Hospital Los Angeles.

Olson said the journal reports should help persuade more doctors to offer these kids sex-changing treatment or refer them to specialists who will. “It would be so nice to move this out of the world of mental health, and into the medical world,” Olson said.

The Mandate, Free Exercise, and RFRA

Ellis West (University of Richmond) has published an op-ed in the Richmond Times-Dispatch arguing that "if if the question is whether the [contraception-coverage] regulation violates the religious freedom guaranteed in the First Amendment, the answer is clear. It does not." Much of the piece presents arguments that the framers did not intend the Free Exercise Clause to require exemptions from facially neutral, generally applicable laws. I believe the historical issue is more debatable than Ellis does, but let me focus on a couple of smaller but important points about the religious-freedom legal challenges to the mandate.

One point is about the constitutional free-exercise claim. According to Ellis, Catholic objectors are arguing that "groups have a right to be exempt from obeying valid laws everyone else has to obey, provided they have religious reasons." Actually, though, it is definitely not the case that "everyone else has to obey" the mandate. As the complaints in the lawsuits state, millions of small employers (employing under 50 people) are exempt; significant percentages of other employers are grandfathered; and individualized waivers, running probably in the thousands, have been granted by HHS to others. See paragraphs 36-53 of that complaint (filed by a non-Catholic objector, Colorado Christian University). When the law accommodates the interests of so many organizations--the interest in alleviating burdens on small business, the various interests reflected in the granted waivers--there is a strong First Amendment argument that the law must likewise accommodate the constitutionally recognized interest in religious conscience. In the terms of Employment Division v. Smith and cases following it, the mandate is not "generally applicable."

The other points are about the Religious Freedom Restoration Act, on which the challengers rely. Ellis says that Congress passed RFRA "because of pressure from religious organizations," and that Americans need to decide "which kind of religious freedom they want": the kind that gives exemptions from facially neutral laws or the kind that doesn't. Actually, RFRA also had support from a host of secular civil-liberties organizations, including the ACLU and People for the American Way. And as this article reminds us, "Support was so widespread that the RFRA passed the House in a voice vote. In the Senate, the final version passed 97–3." Unless Congress was monumentally out of touch, these margins suggest that Americans from across the political spectrum really do want the kind of religious freedom in which, after the political tug-of-war has produced a substantial burden on religious exercise, courts take a second look whether that burden is justified by strong reasons.

I think the right phrase is "Americans do want" such freedom rather than "did want," but it's a little less clear today than in 1993, when people from across the political spectrum thought religious conscience deserved that chance for accommodation depending on circumstances. Today, you hear more liberals saying that accommodations are simply improper, affronts to the rule of law. That's a change: an abandonment, unfortunately, of a longstanding liberal commitment to protecting religious conscience from majoritarian imposition.

Mandates, Moral Agency, and Magisterial Messaging

Readers interested in Robby's and Sherif's important Morals and Mandates on the one hand, and the three interrelated queries it has occasioned in my tired brain as elaborated in three recent posts here on the other hand, might find this summation to be of interest: http://www.religiousleftlaw.com/2012/02/mandates-moral-agency-and-magisterial-messaging.html.

Happy Sunday to All! 

Morals and Mandates: Question 3

I mentioned both Thursday (while elaborating Question 1) and yesterday (after elaborating Question 2) that there are at least three questions raised by Robby's and Sherif's very stimulating Morals and Mandates ('MM') piece posted earlier this week.  I now turn to the third of those questions.  This one is more purely 'theoretical' than the previous two, in that those latter were, so to speak, 'mixed' theoretical and practical in character.  But it might nevertheless be of interest to all of us, not least because it speaks to a possible 'bridge' or 'missing link' between the formal and material modes of involvement in wrongdoing upon the distinction between which MM trades.  And insufficient attention to some such bridge in the wider debate over the HHS mandate might even be what rendered my first two questions salient - assuming that they were, in fact, salient.

So, first briefly to contextualize, recall that MM drew attention to the distinction between formal involvement in wrongdoing, which sounds in intention, and material such involvement, which sounds in effects.  Against the backdrop of this distinction, MM suggested that there might be no morally relevant distinction between HHS Mandates 1.0 and 2.0, since both induced solely material involvement in possible wrongdoing by religiously affiliated institutions, and neither induced qualitatively or quantitiavely different degrees of such involvement.  

In Question 1, I queried whether there might not be some other harm inflicted upon religiously affiliated institutions by Mandate 1.0 - some harm that (a) was not captured by the formal/material involvement in wrongdoing distinction as that distinction was articulated in MM, and (b) might be avoided by some conceivable renditions of Mandate 2.0.  In Question 2, I queried whether, even granting that Mandates 1.0 and 2.0 required only material, not formal, involvement in wrongdoing by religiously affiliated institutions, Mandate 1.0 might actually have been likely to cause significant material harm while some conceivable renditions of Mandate 2.0 might not be apt to cause any such harm - and might even operate to the contrary by affording a new opportunity for religiously affiliated institutions to signal their disapproval of contraception.

The tentative replies to those first two queries upon which I provisionally settled both turned out to involve a common factor - a factor that seemed both (a) to be left out of account by MM's particular articulation of the formal/material distinction, and (b) to account for the significant difference in harms that seemed apt to be wrought by Mandate 1.0 but not necessarily Mandate 2.0.  That factor was what I called the 'integrity,' or 'dignity' interest of religiously affiliated institutions, which seemed to me to be directly assaulted by Mandate 1.0 in a manner that would need not occur under some possible renditions of Mandate 2.0.  

The difference between Mandates 1.0 and 2.0 in respect of that integrity factor, it seemed to me, was such that Mandate 1.0 would be morally problematic even apart from any further ('material') consequences, in the form of contraceptive use, that it might occasion, while conceivable renditions of Mandate 2.0 would need not be problematic at all on that account.  Then in addition, I noted, this same assault upon institutional integrity wrought by Mandate 1.0 which was problematic in and of itself, might also render Mandate 1.0 more objectionable than Mandate 2.0 on more remote-consequentialist (material effects) grounds.  For the direct assault on institutional integrity also would compromise or 'scramble' the religiously affiliated institutions' magisterial message to the effect that contraception is wrongful, thereby rendering more contraceptive behavior in the world ultimately more likely.

I now want to suggest that the fact that this integrity factor seems to distinguish Mandate 1.0 from some possible renditions of Mandate 2.0 not only materially (remote-effect consequentially), but also more than materially (by dint of the per se objectionability of governmental attack upon institutional message-integrity), might well mean either of two things that probably boil down to the same thing: viz., that there is a space - either (a) a formal or (b) a sort of 'quasi-formal' space - between formal involvement in wrongdoing and material such involvement as those are characterized by MM.

Here is the key, I think, to the door that has thus far obscured that space:  A common error made by people who either uncomprehendingly mock or cynically abuse the venerable doctrine of double effect ('DDE') is to assume that a posterior remote intention somehow obliterates an anterior proximate intention.  One who commits this error might say, for example, that President Truman's decision to deploy nuclear weapons against civilian targets comported with the requirements of morality per the DDE, on the putative ground that 'what he intended was to bring the war to a more rapid close, not to kill thousands of innocent civilians.'  That would-be defense of Mr. Truman is erroneous, of course, because Mr. Truman intended both - intending the first as a means to fulfilling the second.  And the DDE's second, 'proportionalist' step upon which this 'defense' trades only kicks in once the first step, which prohibits all wrongful intentions, is satisfied.  Let's call this 'the Truman fallacy' for present purposes. 

Now of course none of what I have just said is to say anything that Robby and Sherif don't already know far better than I - indeed I am immeasurably more likely to blunder in moral analysis than are they, in view both of their expertise on the one hand and of my correspondingly comparative tyro status on the other.  But I think that the same characteristic of the structure of intention - namely, that one often, and indeed typically, intends to do one thing as a means of doing yet other things that one intends - as renders the Truman fallacy fallacious also underlies that space I'm provisionally positing between formal and material involvement in wrongdoing as those are described in MM.  

Why do I say that?  I say it because, given that handing to someone an insurance policy that includes contraception coverage is wrongful (which we assume for present purposes that it is), and given that such 'handing' is intentional action just as is communicating an order to bomb Hiroshima with nuclear weaponry (is it not?), it would seem to follow that Mandate 1.0 required that religiously affiliated institutions commit intentional wrongs - MM's suggestion that intentions (in the guise of formality) are out of the picture in both Mandates 1.0 and 2.0 notwithstanding.  It required them actually to commit  intentional actions that were transparently inimical to their institutional messages, hence actually to intend, even if not to desire, those message-inimical actions.  

And it is here, I believe, that we find the explanation for that acute sense of shock - of profound violation if not outright violence - that many of us experienced in response to Mandate 1.0 but might not experience in response to some possible renditions of Mandate 2.0 - a sense of shock that MM, overlooking as it seems to me to do this relevant space of intention, suggests that we've misdiagnosed.  And it is this space of intention also, I think, that accounts for what struck me in yesterday's post as a likely material difference apt to be made by Mandate 1.0 but not all imaginable renditions of Mandate 2.0.  For it is precisely an institution whose agency itself, in respect of one of its own core messages, has been conscripted - hence whose integrity has been violently disintegrated - in the manner that Mandate 1.0's forcing of dissonant intentional action did, that is apt no longer to be taken seriously by those whom it purports to teach and to guide.

If what I am suggesting here is at all plausible, then it seems to me we are left with but one more relevant practical question.  That is whether there are not indeed certain imaginable final forms that Mandate 2.0 might take, which do not conscript religiously affiliated institutions' intentional agency in respect of their own core messages in the way Mandate 1.0 did.  It seems to me that requiring would-be contraception insurance beneficiaries to seek that insurance directly from their insurers, without involving their employers any further, takes one significant step in that desirable direction.  We can walk even further that way, and at no cost to the putative public interest in widespread availability of contraception insurance to those who wish it, however, by further formalizing the change in the form of a rider or separate policy.  I believe we should be pressing for that.  

It seems worth noting that this can even be done in a manner that does not involve costs' being passed along under the table to religiously affiliated employers.  For if I understand the process of health insurance company decision-making correctly, these institutions typically find it to be worth their while to afford contraception insurance coverage quite literally free of additional charge any time that they provide pregnancy and childbirth (let along abortion) cost coverage.  Why?  Because the latter are much, much more costly than contraceptive coverage, such that insurers accordingly find it to be in their interest to minimize all such 'accidental' pregnancies as they can.

One final point:  Both here and in Question 1, I noted that much rides on the meaning of 'handing,' as that word figures in such locutions as 'handing a pornographic magazine to one's own children' (in the Question 1 post), or 'handing insurance policies to one's employees' (above in this post).  The reason for that is that I've described the intentional actions that intruders or governments might force, to the detriment of integrity or dignity, in those very terms.  Given that, then, might religiously affiliated employers' required entry into insurance arrangements with firms that their employees then separately contact or contract itself amount to such reqired 'handing'?  

Somehow it doesn't strike me so, any more than required tax payments that then finance other perceivedly objectionable activities do - especially if the employees' separate contacting take the form of separate contracting.  This perception of mine, which seems to be shared by many others who were troubled by Mandate 1.0 but are hopeful about what form Mandate 2.0 might ultimately take, might be dismissed as mere 'heuristics.'  But that criticism would seem misdirected.  For, yes, heuristics are ultimately more intensional than extensional, more connotative than denotative - they are about meanings.  But where matters moral, political, and theological are concerned, it seems to me meanings are just about everything.  Indeed as yesterday's post ('Question 2') suggested, they even are causally efficacious, to the point that they render some conceivable renditions of Mandate 2.0 fully as materially (i.e., extensionally) superior to Mandate 1.0 as they are formally.

Plausible? 

Thanks again to all who are taking part in this critical discussion.           

Morals and Mandates: Question 2

Yesterday I posed a first question prompted by Robby's and Sherif's compellingly argued Morals and Mandates (MM). That question was whether formal and material involvement in wrongdoing, upon the distinction between which MM trades, jointly exhaust the class of morally relevant harms that a mandate might occasion.  The reason I asked was because it seemed to me that the answer might well be no, and that a possible third form of harm, which what I have been calling HHS 'Mandate 1.0' seemed to me to inflict upon regiligiously affiliated institutions, might not be wrought by some possible renditions of the thus far not fully specified Mandate 2.0.  That prospect, in turn, struck me as important.  For it would seem to entail that those of us who were troubled by Mandate 1.0 might (a) have good reason to have been thus troubled, and yet (b) not have the same reason to be troubled by at least some possible forms that Mandate 2.0 might take.  

Thus far, of course, those considerations constitute but a proper subset of the full set of possibilities that I take it we must query in determining how, morally and legally speaking, to regard Mandate 2.0.  For, even granting that (a) and (b) as just articulated might ultimately convert from cases of 'might' to cases of 'do,' such that there were good reasons to reject Mandate 1.0 that do not carry over to all possible renditions of Mandate 2.0, we still would lack sufficient, as distinguished from necessary, conditions to deem any particular shape that Mandate 2.0 might take unobjectionable. 

This is all because, at the very least, the material form of required involvement in possible wrongdoing discussed in MM still could conceivably be occasioned by all possible forms that Mandate 2.0 might take.  In other words, even assuming that the the overall reply to my first question-cluster yesterday was yes, such that there were reasons to object to Mandate 1.0 that would not necessarily apply to Mandate 2.0, the most we could conclude from that is simply that one good reason for objecting to Mandate 1.0 - again, a reason sounding in institutional integrity or dignity - might not be present as a reason for objecting to some possible versions of Mandate 2.0.  It would not follow from this that the full set of possible renditions of Mandate 2.0 is not still objectionable on other grounds, sounding in material involvement in wrongdoing.  

And so I turn now to my second question occasioned by MM, as promised yesterday.  This is, as foreshadowed yesterday, a query having to do with causation.  

So, to begin with, I single out causation in owing to MM's characterization of material involement in wrongdoing's having to do with the rightness of choices in view of foreseeable beneficial and harmful effects upon all concerned parties.  Where there are effects, there are generally causes.  And so it seems we must look to the causal relations apt by any particular rendition of Mandate 2.0 to be brought into play between choices made by religiously affiliated institutions on the one hand, and harmful actions/events that take place in the world on the other hand.  What such actions or events might transpire, and what causal relations between religiously affiliated institutional choices and those actions or events might some rendition of Mandate 2.0 itself cause? 

(Note, by the way, before we proceed, that there might be something metaphysically problematic about speaking in terms of 'caused' 'actions' - in effect the metaphysical face of that problematicity inherent in not taking individual contraceivers' morally responsible decisions as decisively severing the effects of those decisons from their employers.  But problems of this sort seem to me at least on cursory consideration apt to be surmountable via plausible accounts of joint fault and the capacities of some agents to influence choices made by other agents, so it is probably safe to sidestep them for present purposes, in order to keep our eyes fixed on the present ball.)

The actions/events in question, I take it, would include primarily the following: (a) more occasions of contraception by employees of religiously affiliated institutions; (b) more occasions of contraception-induced abortion by such employees; and (c) dilution or even outright 'scrambling' of the teachings and attitudes of the religious communities in question concerning the moral status of contraception and, possibly, even abortion. 

Our question, then, is whether all conceivable renditions of Mandate 2.0 are apt appreciably to increase the incidence, or perhaps the probability of incidence, of actions/events of these sorts. 'Increase' here, for its part, can be understood relative to either of two baselines.  One is, relative to actions/events wrought or rendered appreciably more likely by Mandate 1.0.  The other is, relative to actions/events apt to be taken or to occur absent any such mandate at all.  It will be convenient to proceed by reference to the second of those baselines first. 

(It also turns out to be unobjectionable, for reasons that soon will be clear, to leave out of our present account such benefits as are wrought by the two mandates.  The short-playing version is that no benefits turn out to be necessary in order for some conceivable renditions of Mandate 2.0 to be found unobjectionable, while no benefits seem apt to be beneficial enough to justify Madate 1.0's particular harms.)

Does either Mandate 1.0 or 2.0 seem apt appreciably to increase the incidence of actions/events of type (a)?  This isn't clear to me.  Certainly more in the way of empirics than I am able to offer right now will be necessary to answer with great confidence, but from here in the armchair it would seem that contraceptives are in general sufficiently widely available, and at sufficiently low cost, that insurance coverage of the same might not make much if any difference to the frequency with which they are purchased or employed.  If more or less the same incidence of contraceptive decisions and actions would be found absent a mandate as would be found in the presence of a mandate - particularly if it were the same people making the same decisions in both cases - then the mandate would not seem to be causally efficacious in the manner required to damn it pursuant to a material involvement in wrongdoing analysis.  

Where actions/events of type (b) are concerned, matters would seem to me likely to be much the same as, even if perhaps not quite identical to what, they were in the case of type (a).  At least that seems so given that 'Plan B' type pharmaceuticals cost around $40 or $50 per dose, if my quick web check is to be trusted.  In view of how costly (to speak crassly - but then, we are considering crass decisionmaking here almost by hypothesis, aren't we) a preganancy and then parenting are, it does not seem beyond the pale to suggest, again from the armchair, that most if not all who would purchase contraceptives for abortive purposes under mandated insurance would do the same absent such insurance.  Again, though, real empirics are called for, and I'm more than ready to be corrected. 

How about effects of type (c)?  Here it is not at all clear to me that there could be no plausible rendition of Mandate 2.0 pursuant to which religiously affiliated institutions' affiliated faith communities' teachings remain clear.  Does it not send a very clear signal to all, for example, that a faith community strongly disapproves of contraception, when employees of an institution affiliated with that faith community must transact separately with an insurance provider to procure contraceptives, apart from and after transacting with their employers for all other forms of coverage?  And is this not so under a multitude of forms that the separate 'transacting' might take? 

In a way, it almost seems to me that the separate transacting requirement might even afford an additional opportunity for the faith community in question to make plain its objection to contraception, precisely by dint of the stigmatization that the separate transation requirement exerts upon the transacting for contraception coverage.  Again, there might be something that I'm overlooking here, but as things presently stand in my poor tired head, it almost looks as though some possible renditions of Mandate 2.0 might actually serve to render contraception (and abortion) more stigmatized, and faith communities' teaching in respect of those matters more clear and more widely publicized, than is the case absent any mandate at all.  (I promise I'm not saying this with a view to being gratuitously ironic or waggish.  Things truly look to me this way at present.)

Now I turn to the Mandate 1.0 rather than the no mandate baseline.  As I do so, however, please recall something from yesterday.  In yesterday's 'Question 1' post I noted that MM's equating Mandates 1.0 and 2.0 presented us with a two-edged sword.  For if they both really did implicate material involvement in wrongdoing alone such that any good argument contra Mandate 1.0 carried over to Mandate 2.0, then by contraposition the refutation of arguments against Mandate 2.0 would suffice to refute arguments against Mandate 1.0.  If MM is correct in equating the two Mandates, then, and if the possibilties countenanced just above, to the effect that renditions of Mandate 2.0 might cause no material changes in employees' behavior at all and might even enhance faith communities' moral signaling opportunities, then it would seem that even Mandate 1.0 is unobjectionable. 

I am not, however, inclined to believe that Mandate 1.0 was unobjectionable; quite the contrary.  And that is essentially for reasons that I provisionally laid out yesterday.  But now, as it happens, for those same reasons I am inclined to find Mandate 2.0 superior to Mandate 1.0, even under the aspect of material involvement in wrongdoing as defined by MM.

Here is what I mean:  Where actions/events of types (a) and (b) qua types (a) and (b) are concerned (explanation of the 'qua' here to come), I agree that there is no appreciable difference between Mandates 1.0 and 2.0.  That is to say, apart from matters having to do with effect type (c), neither Mandate seems apt to induce more incidents of contraception or abortion than the other. 

When we bring effects of type (c) into the picture, however, it seems to me that there is indeed a critical difference between the two Mandates.  For in the first, which required religiously affiliated institutions to go ahead and purchase for their employees insurance policies that included coverage for contraception and, therefore, potentially some abortions as well, the magisterial message of the faith communities with which those institutions are affiliated could indeed be compromised.  And that very compromise, moreover, I think to be intimately bound up with the 'integrity'/'dignity' objection to Mandate 1.0 that I raised yesterday.  For the assault on insitutional integrity or dignity is precisely the forcing of an institution in effect to 'say,' through its deeds, something quite contrary to what it actually stands for and means through its witness to say.   

If you combine with this observation that fact that the 'scrambling' of the magisterial message might also be expected to result in an appreciable increase in the incidence of contraception and even abortion on the part of religiously affiliated institutions' employees - action/event types (a) and (b) - I think, you are led to draw several provisional conclusions.  

One such conclusion is that, even if we reply 'yes' to yesterday's query whether formal and material involvement in wrongdoing exhaust the possible grounds of objection to the mandate, and even if we accept MM's suggestion that both Mandate 1.0 and Mandate 2.0 implicate the material involvement concern alone, it might still be the case that Mandate 2.0 in some forms is quite acceptable (even, perhaps surprisingly, preferable to the no mandate baseline!) while Mandate 1.0 is not.

Another such conclusion, carried over from yesterday, is that formal and material involvement in wrongdoing might not exhaust the class of grounds upon which Mandates 1.0 and 2.0 can be morally evaluated.  There might be other such grounds, having to do with institutional integrity or dignity, which (a) are not captured by the formal/material involvement partition, and (b) afford additional grounds to damn Mandate 1.0 but not all renditions of Mandate 2.0 - grounds additional to those found above, even if connected to those found above.

Finally, a third such conclusion, given that first, as noted yesterday, my dignity/integrity objection might be cognate with some form of objection sounding in formal involvement in wrongdoing, and second, as just suggested, the same objection might also link up with an objection sounding in material involvement, is that this dignity/integrity objection that I attempted to articulate yesterday might itself constitute a sort of bridge between formal and material involvement in others' wrongdoing.  I'll try to elaborate a bit more on this in the form of a 'Question 3' tomorrow.

Thanks again to all who are taking part in this conversation.             

 

More on the Possible Vouchers Analogy - and Then Some

This post is distinct from, but of course complementary to, that sequence of posts I began earlier today, the members of which sequence are to raise and preliminarily address discrete questions that Robby's and Sherif's Morals and Mandates seems to me to raise.

What I'd like to do here is a bit more fully to contextualize the reference to vouchers that I made in an earlier post (that on the 12th, titled 'Request for Clarification on the Revised HHS Mandate'), wherein I noted that I've often defended voucher programs on grounds that might - might - carry over to the insurance mandate context as well. 

In the aforementioned post, I noted that my ultimate hope was both (a) 'to come to an informed judgment of the HHS mandate,' and (b) somewhat more broadly, 'to ensure that I hold a coherent general account of how we as a nation might maintain our eclectic amalgam of mixed public-private social insurance and safety net provision on the one hand, without running aground on the Scylla of establishment or the Charybidis of curtailed free exercise on the other hand.'

What I wish to do here is preliminarily to schematize that general account referenced by (b).  If it's coherent, then the voucher analogy might be apt notwithstanding any equivocation on the word 'support' of the sort suggested by Sherif via Robby in his helpful post posted yesterday.  I'm a a wee bit less concerned with establishing the aptness or otherwise of the analogy, however, than I am with ascertaining whether the general account I am groping for is indeed coherent - though of course clarity in respect of the first might well be pre-required by coherence in respect of the second. 

I'm especially interested in the second matter, incidentally, because it figures essentially into a much bigger project on which I now am at work, with which I could use a bit of help and which also would seem to carry implications for the HHS mandate, voucher programs, and much else that concerns most of us here besides. 

So that's my reason for aiming here to 'contextualize' the voucher analogy, as I put it several paragraphs up.  The reason to contextualize is not to duck the question of the aptness of the voucher analogy, but to address it in a manner that might afford the conceptual resources needed to address both the analogy itself and many additional, cognate questions as well.

Here, then, is the schema I'd like to try out on all interested readers.  Suppose first that the state's principal function, hence the principal if not sole ground of its legitimacy, is its acting as a collective agent on behalf of us all in addressing collective action and coordination problems that by definition neither individuals nor substate groups of individuals can address. 

The hallmark of such problems is of course that multiple acts that are individually rational aggregate into outcomes that are collectively disadvantageous or even calamitous.  Asset price bubbles and consumer price hyperinflations are cases in point; it is rational for each agent to buy now rather than later in such cases, and then everyone's doing acting accordingly drives prices yet higher.  Much the same goes for needs of certain essentially 'public' or 'nonexcludable' goods like environmental, police, and military protection, in respect of which it is in a certain sense rational for each individual to 'free ride' on the contributions of others such that insufficient collective provision is made.  

Next suppose, I think plausibly, that distributive justice is itself an inherently public good of this sort - the sort of good that individuals and substate groups of individuals are structurally incapable of providing.  Such individuals and substate groups lack both (a) access to the information requisite to determining both what the current distribution of benefits and burdens in their full society is and what that distribution should be, and (b) the authority to work such redistributions as the findings reached under (a) end up showing in justice to be required.  Only the state - that collective agent which acts with the authority and in the name of us all - is constitutively able to do that.

Next suppose, again I think plausibly, that some version of the general libertarian 'luck egalitarian' ideal is the correct understanding of distributive justice.  The correct understanding, in other words, is one pursuant to which differences in citizens' material circumstances are attributable to their differential exercises of responsible behavior the fruits of which are differently valued or disvalued, socially speaking, in measures determined by free and fair markets (which terms, I promise, I have provided intuitively attractive technical definitions elsewhere), and not to endowments or deficits that are products of mere luck. 

Variations on this general conception have at various times of course been put forward by many philosophers and some economists, though it seldom seems to be observed that one of the very first to advance such a conception was James Gordley, whom I wish received more credit for it.

Now the luck egalitarian ideal, of course, is just that - an ideal.  It seems apt for as long as we remain mortal to be at best better and better approximated, never quite reached.  The reasons are manifold and many of them are obvious, embracing as they do demarcation (chance versus choice) and measurement difficulties, among others.  But the ideal can be intelligibly striven for and approached in certain obvious ways, and much of what states do, when acting legitimately, can be plausibly understood along those lines. 

Hence, for example, education seems an important benefit that can and ought to be spread widely, so as to ensure that even those born into impoverished families are not deprived on that account of any more material opportunity looking forward than they have to be.  Like remarks hold, of course, for the opportunity to insure against risks to life and limb against which individuals can only do so much to provide in the absence of risk-pooling.  So states that act in the name of societies who care about justice - as all civilized societies surely do - not surprisingly tend to act as to ensure that education and health-risk-pooling opportunities are spread widely enough as to reach all.            

Now, one way in which the state might do this is simply to provide all such opportunities directly, via its own facilities and employees, all of which is financed by tax revenues.  The redistribution inherent in such justice-advancing activity is of course worked through the tax codes, which in civilized societies that pursue distributive justice tend in the 'progressive' direction.  But one might retain this redistributive structure in a manner that does not drain the goods and services in question of all cultural or religious 'flavor,' or otherwise undermine the rich patchwork and network of substate institions that constitute what we call 'civil society.'  One can do so by permnitting or even encouraging the provision of the services in question by substate institutions, while financing citizens' choices among them through vouchers and other forms of citizen-choice-tracking state subsidy.  

And something like this is of course what we do in the US, to greater degree on the civil society scale than do our peer nations.  And that is of course all to the good in an abundance of ways.

One risk to which the American system of pulling this off gives rise, however, is that of state's becoming non-neutral in respect of distinct institutions offering comparable goods or services. 

To finance parochial schools without regard to their pro rata share of freely choosing students and families, for example, can offend non-establishment concerns both formally and materially, by both appearing to 'endorse' and effectively advantaging with a better than pro rata share of funds.  By the same token, to require that students not attend non-parochial schools, or to permit it but not distribute to students their pro rata shares of tax revenues collected from all to finance education, can offend that imporant contributor to civil society known as 'free exercise' formally and materially as well - by on the one hand seeming to 'disfavor' or 'dis-endorse,' and on the other hand rendering relatively more expensive, parochial education.

Like remarks hold for health and health-insurance provision, and of course all manner of social service provision.  The guiding idea in all such cases is somehow to make of the state nothing more than a limited purpose wealth-redistributor, which executes this function solely in the name of justice in the distribution of certain basic goods that we all tend to agree ought to be spread more or less equally over all, because the want of them is unattributable to the responsibility of any who are wanting.  And the only way to ensure that the state is indeed 'nothing more' than this - i.e., that it does not formally or materially advantage or disadvantage any particular cultural or faith-traditional 'flavor' in which these basic goods might come - is to keep severed certain links that the goods might under some circumstances have to the state or to the non-state provider. 

If we keep those possible links severed in the right ways, we ensure that state remains in a sense 'colorless' and neutral, and that facts on the ground more or less replicate the baseline condition in which the distribution of goods- or service-provision among providers is precisely what it would be were the state to do nothing more than tax and redistribute to individual citizens for specific justice-redolent purposes and those purposes only.

Now on the state side of this 'severence imperative,' as I'll call it, the severence seems readily effected by voucher arrangements.  The state cannot reasonably be taken for formally endorsing, nor will it materially advantage relative to the baseline just mentioned, any institution that ends up serving more people than other institutions simply because more vouchers were freely spent upon that instituion by freely selecting citizens.  And so it seems to me that school voucher programs are quite in keeping with the ideal as thus far articulated.  And so would be, surely, health insurance vouchers that might be spent upon policies offered by various insurance companies - some perhaps 'parochial.'  And so, of course, would similar vouchers that might be spent upon health services offered by various medical facilities - including religiously affiliated ones.

Now for some reason quite beyond me, we don't seem to have gone the voucher route when it comes to affording health insurance on a more or less egalitarian basis to all Americans.  I suppose that would have amounted to 'single payer,' which for some reason turns out to be more offensive and idea to some Americans than does single payer in respect of public schools through direct finance and private and parochial schools through voucher finance.  Instead we've decided to induce, through a combination of 'positive' and 'negative' incentives (primarily tax-based), the pooling of risks and provision of pool-based insurance by employers.  And of course some of these employers are themselves religiously affiliated. 

The question, then, is whether there is some way of protecting such institutions from (a) formally and (b) materially endorsing and aiding practices that are fundamentally contrary to their, as it were, constitutive 'flavors' in providing that pooling and insuring service, and thereby avoiding the state's doing any formal or material harm to those 'flavors' themselves, that is the full counterpart to the voucher-based means of preventing the state from formally or materially benefitting such 'flavors.'

I think that there might be a way to do this, even if single payer and vouchers would be a much simpler and intuitively attractive way of doing the same thing.  Another way of saying this is that I think it might be possible to design a rendition of what I've in other posts called version '2.0' of the HHS mandate that fits the bill.  I'll try to do that in a subsequent post that attends carefully both to the intentional considerations implicated by formal involvement in perceived wrongdoing, and to the causation considerations implicated by material such involvement.  

More, then, tomorrow.  Thanks to all those who've had the patience to read.       

Unpublished Op-Ed on Religious Institutions and Right of Conscience

Our Mirror of Justice (and my law school) colleague, Rob Vischer, posted several days ago (here) about a Minneapolis Star-Tribune editorial authored by state representative John Lesch (here) arguing that the Catholic Church should stop speaking about public policy matters and insisting that conscience was a matter only of individual rights and not belonging to institutions.

I had penned a responsive op-ed, which the Star-Tribune apparently has not seen fit to publish.  So, for what limited value it may have to this venue, I post it below.  Understand that it is in the style and substance of an op-ed.  Nonetheless, I hope it may be of some value for those of us discussing questions of the Church's role in society and the nature of religious liberty with general audiences, including family and friends.

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In Friday’s Star-Tribune, DFL State Representative John Lesch tells us that he was rather upset to hear from his priest at worship last Sunday that the Catholic bishops support the ballot initiative this fall to confirm marriage as between one man and one woman.

A few weeks earlier, he had been annoyed to learn that the Catholic Church was opposed to the (since revised) federal regulation requiring most religious organizations—including faith-based hospitals, charities, and colleges—to fund abortion pills, sterilization, and contraceptives for their employees.

No one questions Rep. Lesch’s freedom to reject Catholic moral teaching or to dispute the church’s vision of the public good.  But Rep. Lesch also wants to shut-down any religious dissent to his own preferred policies.

First, noting the power of the government to impose taxes, Rep. Lesch warns that the Catholic Church should learn to be quiet.

Sadly, this is not the first time that politicians have tried to silence the Catholic Church.

In the 1950s and 1960s, Catholic bishops in Missouri, Louisiana, and elsewhere spoke out against racial segregation, insisted on integration of parochial schools against political opposition, and even excommunicated racist politicians and citizen leaders.[See Note Below]  Invoking “Separation of Church and State,” many segregationist southern politicians demanded that the church stop interfering in public policy.

More recently, Catholic bishops have called on governors and legislators to abandon the death penalty and to provide more funding for poverty programs.  Once again, some politicians have protested the introduction of these religious voices into public debate.

Second, Rep. Lesch wants to use the power of government to force religious organizations to do as he wants.  He dismisses out of hand any right of conscience by a faith-based hospital, charity, or university.

“Individuals have consciences,” Rep. Lesch asserts, but “institutions do not.”

So then, could a Catholic hospital be forced by the government to perform abortions?  Rep. Lesch clearly thinks so.  Indeed, he argues that Catholic hospitals should be required by law to give everyone “access [to] legal health care.”  Since abortions remain legal, then in Rep. Lesch’s world, Catholic hospitals could be required to offer them.

Could a Mennonite college be forced to allow an ROTC program on campus, contrary to its pacifist values?  Because he would see a Mennonite college as merely an “institution” without rights, Rep. Lesch presumably would turn a deaf ear to its objection to a law requiring all colleges to offer military training.

Could a homeless shelter operated by Lutheran Social Services be required to check the immigration status of those it serves, under a state law that prohibits “harboring illegal aliens”?  Rep. Lesch’s narrow approach would withdraw any protection here too.

Could a Catholic law school be mandated by accreditation laws to instruct future prosecutors how to get death sentences against criminal defendants?  Rep. Lesch (wrongly) claims that the First Amendment only affords “individual freedom.”  So, again, his answer must be “yes.”

Now readers might question this “parade of horribles” as exaggerated and designed only to scare people.  But, in fact, religious-based hospitals already have encountered political campaigns to force them to open their operating rooms to abortions.  Religious-based charities, such as adoption agencies, have been forced to close because they wouldn’t follow conflicting government rules, such as offering children for adoption to gay couples.

And, although mostly on non-religious grounds, private universities and colleges have been forced to permit military recruiters on campus, even when they objected as a matter of conscience because the military then refused to permit gays to openly serve.

In a free society, people of faith must be permitted to join together and serve their neighbors, by providing health care, opening soup kitchens and homeless shelters, and offering education through religious schools and colleges.  And they should be allowed to perform those missions consistent with their most fundamental values.

When politicians try to force religious hospitals, charities, schools, and colleges to act contrary to conscience—or to be squeezed out of existence altogether—then religious liberty is in danger.  When a politician denies that religious groups have any freedoms, we all should be frightened.

[Note:  I modified this passage in response to comments and for the reasons explained further in the comments to this post.]

Morals and Mandates: Question 1

Two days ago I mentioned I'd been in Albany and accordingly not yet had time to read Robby's and Sherif's tour de force, Morals and Mandates, with the care that it warranted.  I'd only been able at that point to glance through the piece, which was sufficient to indicate that it was painstakingly thoughtful and thorough, but not sufficient to engage with it responsibly.  Well of course things are still very busy at this end (aren't they near always for all of us), but I have at least found the time to read this important contribution with greater care.  I now have several questions for Robby, Sherif, and interested others that I think might assist me, and possibly yet others, in arriving at a sound opinion about what I've been calling 'Mandate 2.0.'  I'll pose only one of those questions here, saving others for separate posts, in order to maintain sufficient focus on each distinct 'issue' as to keep matters tractable.  Later I hope we might draw all together.

Preliminary to proceeding I pause to note that, as Robby and Sherif observe, the White House has thus far been 'exceptionally vague' about precisely what shape the updated mandate will take.  We might, then - at least if Morals and Mandates is not quite right in one of its conclusions - be in a certain sense deliberating in part in a vacuum here.  The conclusion to which I refer is that to the effect that no shape that Mandate 2.0 might take will render it substantively distinct, morally speaking, from Mandate 1.0.  I'll call this the 'no difference' conclusion.  My first question speaks to precisely this conclusion.  And if its answer turns out to be what I think - don't know, but think - that it might, then the no difference conclusion will be in doubt, and we might then indeed be deliberating in part in a vacuum.  But that will itself be good news, for it will mean that our deliberations might themselves make a difference.  They might ultimately afford guidance in the final formation of Mandate 2.0 itself - assuming that anyone's reading.

All right.  Finally now to my first question prompted by Morals and Mandates, the subject of this narrowly framed post.  

Robby and Sherif observe importantly that there is a critical, time-honored distinction to be drawn between formal and material involvement in wrongdoing.  Formal involvement sounds in intention, while material involvement sounds in effect.  Because neither Mandate 1.0 nor Mandate 2.0 would have involved religiously affiliated institutions in formal involvement with wrongdoing, Robby and Sherif argue, the morally relevant question with which we're presented since 10 February is whether the two mandates are apt to yield appreciably different material effects.  If more or less the same people will receive the same contraceptive coverage under the two mandates, and if the religiously affiliated institutions will effectively be footing the bills in both cases, then there is no substantive difference between them.  Any sound objection to Mandate 1.0 will carry over to Mandate 2.0.  

(This conclusion is of course a two-edged sword, in that it might, under certain causal circumstances I'll inquire about in the form of a separate question in a subsequent post, entail that Mandate 1.0 itself was not objectionable after all.  I defer that until later, though, because I think that Mandate 1.0 was indeed objectionable, for reasons that Robby and Sherif might be overlooking - reasons to the possible, but to me still uncertain, presence of which I now turn.)  

So my question in respect of Robby's and Sherif's no difference argument is whether formal and material involvement in wrongdoing exhaust the relevant possibilities of such involvement.  In other words, does the full class of all possible involvements in wrongdoing divide without remainder into formal and material such involvement?  If it does not, then there might be a morally significant distinction between Mandate 1.0 on the one hand, and some conceivable renditions of Mandate 2.0 on the other hand, that Robby's and Sherif's important argument does not capture.  That distinction, moreover, might be precisely what those who objected to Mandate 1.0, but for now withhold judgement on Mandate 2.0 pending further specification, have in mind.

What might the hypothetical such 'remainder' here be?  For now let us call it a 'dignitary,' or 'integrity' interest that Mandate 1.0 violated while some specifications of Mandate 2.0 might not violate.  My guess is that a moral intuition - or, in one currently hip idiom, a 'heuristic' - that sounds in some such interest might be at work among many of those who recoiled at Mandate 1.0 but for now reserve judgment about 2.0 pending further specification.  Moreover, I suspect that this intuition, assuming it's there, might belong to the same 'cognitive family,' so to speak, as the 'proximity heuristic' evoked by many 'proximate causation' hypotheticals in tort and many 'trolly problems' in ethics.

Is there such an intuition, and if so, is it morally rational to honor it?  Does some such intuition, in other words, tap into or serve as a window into some important moral truth?  Here's a way at least to begin to address that pair of questions:  

First, let x be a commodity the consumption of which many find deeply morally objectionable, others find morally indifferent, and still others find morally necessary.  D is a person who might, and might not, consume x.  C is a person who sells x.  B is a person who finds the consumption of x deeply morally objectionable.  Finally, A is a person who considers at least the availability of x to all persons like D to be morally necessary, and who also is able through various coercive powers both to make certain commodities available and to make other persons make such commodities available - even to the point of requiring persons like B to procure goods like x and then hand them to persons like D.

It is of course possible to open some or all of the 'black boxes' that are A, B, C, D, and x here, in that at least some of them - certainly A, B, C, and x per the 'intended interpretations' that I have in mind - are composite.  (A, for example, might be a democratic repbulican state; B and C firms comprising multiple participants of various kinds, and x a portfolio of many services all but one or two of which are morally unobjectionable to all or nearly all concerned parties.)  It is also possible to add additional parties or entities.  And it might ultimately be necessary to engage in some such disaggregating and/or entity-adding in order to get to the moral heart of the matter before us.  But for now I'll assume it legitimate to keep things sufficiently simple as to embrace only A, B, C, D, and x as indivisible wholes.  

Well, you see now where this is going.  There seem to be several distinct scenarios under which A might execute its intentions to make x available to D here.  Per one of them, call it 'Scenario 1,' A procures x from C and provides it to D.  Per another, Scenario 2, A requires C to make x available to D free of charge.  Finally, per another scenario, Scenario 3, A requires B - the party that considers x to be repugnant - either to commence providing x directly to D, or to procure x from C and then provide it to D.  

Now it seems to me that our moral intuitions are engaged by Scenario 3 in a manner qualitatively distinct from any manner in which Scenarios 1 and 2 might engage them, and that the distinction is grounded in something that is not merely irrational, illusory, or morally epiphenomenal.  That something is what I labeled above the 'dignitary' or 'integrity' interest.  Something in us seems to balk at the idea that one (one A) might not only give to person D something which person B finds repugnant, but might go a step further and say to person B him/herself, 'here, you give it to D.'  It strikes us a particularly insidious, diabolical, even gratuitously cruel - as if an intruder in one of our homes, not satisfied with simply handing a pornographic magazine to one of our children, ordered a parent at gunpoint to hand the magazine to her/his own child instead.  

Am I wrong here?  Do we, in other words, not view it as more chilling for the intruder to force the parent to hand the item to the child than for that intruder to do so him/herself?  And if we do, is this just morally epiphenomenal, so to speak, a matter of mere superstition?  Or is there more to it?

It seems to me, at least pending further argument, that there might be something substantive here.  Somehow your (A's) forcing one party (B) to commit the very act that that party considers repugnant - in this case, handing a repugnant commodity (x) to, or procuring that repugnant commodity for, another party (D) - is worse both than committing that act oneself, and even than, say, appropriating money from that party (B) or some other party (C) so as to finance your own (A's) provision of that commodity.  For it does a sort of violence to the objecting party's very integrity or dignity as a moral agent that the mere taking of funds from that party or some other party, let alone the taking of funds from another party in such wise as leads to that other party's exacting funds of you, does not. 

(Note that I am assuming a causal nexus in that last scenario - A appropriates money from C who then in consequence exacts money of B - which might itself be questioned, at least in insurance markets (for reasons I'll treat of later), but which I do not question for present purposes.  Much also rides on what counts and does not count as 'handing' a repugnant commodity to someone here, which we might ultimately have to discuss, but I'll assume for the moment that having money appriated from one so as to finance someone else's handing over of the commodity does not count as one's own handing the commodity itself.) 

My conjecture is that some such intuition as this accounts not only for the reactions that many 'liberal' Catholics experienced in respect of Mandate 1.0, but also for the reaction that, say, Justice O'Connor experienced in respect of the federal government's 'commandeering' of a state in the set of circumstances that resulted in New York v. United States.  It might also account, in whole or in part, for the constitutional 5th Amendment right against self-incrimination.  In all such cases, the objection seems to have something to do with the impression that some actions in effect commandeer the moral agency of a person of some kind, as if to convert that person from an end to an instrument.  And it isn't yet clear to me that this impression is merely illusory.  

(Even though, I must admit, while a JD student I thought O'Connor's 'commandeering' objection in NY v. US muddled and absurd, the product of a mere category error in taking states to be the sort of thing capable of holding dignitary interests.  But maybe I was wrong?)

So, Robby, Sherif, others, what make you of this?  Is there anything to it?  And if there is, then might there be some conceivable further specification of Mandate 2.0 that would prevent its offending a religiously affiliated institution's dignitary or integrity interest?  I honestly haven't decided yet.  And that is partly because I am not yet quite certain what to make of the intuition or 'heuristic' to which I refer.

One final point.  It might be that the 'integrity' intuition of which I am tempted to make something here can be understood in intentional terms, such as might render it not quite correct that Mandate 1.0 managed to avoid formal involvement of religiously affiliated institutions in wrongdoing in a manner that placed it on all fours with any conceivable further specification of Mandate 2.0.  And I say this as one who, like Robby and Sherif doubtless do, subscribes to an Anscombian - hence ultimately a Thomist and Aristotelian - understanding of intention.  But I'll save this, too, for later, so as not to complicate the present post any more than necessary.  (It might also be the case that all I have said above is vitiated by my not yet considering in greater detail whether the 'dignity' or 'integrity' objection can be couched in intentional terms.  At present I just do not know, so I'll leave it at present at that.)

Many thanks again, as ever.      

 

What is freedom?

 

The Mirror of Justice and many other forums discussing the important issues of the day have been addressing freedom. A great deal of the recent focus has been on the claim made by many devout religious believers, including Catholics, that the HHS mandates for health insurance coverage of morally and legally problematic “services”. Of course there are some libertarians who view their perspective as the only one or the best one or the accurate one who disagree with this thought.

Virtually all speakers, sooner or later, rely on some form of the freedom argument. I think they are correct in this pursuit, especially when notions about the rule of law come into play. But what is freedom? Is it as the plurality in Planned Parenthood v. Casey argued: “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” If so, the collision course which I and others have predicted before is happening once again. In the context of the HHS mandate, we have the folks relying on “religious freedom” in direct conflict with those arguing “reproductive rights freedoms.”

But, one distinction between these two positions quickly emerges: the first group comprising advocates for religious freedom is not asking the second group to pay for their freedom; however, the second group is asking the first to pay for their freedom claim for “reproductive health services.” Should this distinction matter? Indeed, it should. But that is not why I write today. Rather, there is another, far more basic reason which rides on the meaning of freedom. What is it?

In previous postings I have drawn the distinction between the freedom “from” something and the freedom “for” something. Oftentimes the “something” is an authority. But that is not the only something. After a lot of pondering, I think the “something” is fundamentally that which permeates all human existence. The elemental reason for the distinction between the “from” and the “for” is this: there are things that are right, good, and proper for the human person to pursue because they affect many and sometimes all other members of the human family. There are also some things which the human person wants to do because they fulfill or satiate the individual will, i.e., the desires of this person, but these personal objectives do not take stock of the important interests of others. Another explanation for the distinction involves the reality of the Casey dicta: the desirable is what the individual person wants, and that’s it; there is no need to consider anybody else. This approach is a problem.

So is there some way of satisfactorily addressing this predicament?

A thought of Lord Acton offers relevant help. He once explained that authentic freedom is not that which the person wants or desires; rather, it is that which the person must do.

Note how the first element—doing what the individual wants—replicates the Casey formulation. This formulation coincides with the HHS mandate: the “freedom” of persons who want artificial birth control, abortion-inducing chemicals, sterilization, and other desires. This “freedom” is not something that ought to be done for the sake of all including the unborn and those persons with well-formed moral consciences that take stock of the “ought.”

Religious liberty is in the cross-hairs these days. I wish it were otherwise, but since it is not, let me suggest something for this web log community to consider: which of these two fundamental camps that I have identified in the HHS mandate matter is pursuing the self-serving and which is pursuing the other-serving? I submit that the distinction is clear.

 

RJA sj

 

Sherif Girgis on the possible vouchers analogy

Supplementally to the essay Sherif Girgis and I did for Public Discourse responding to Bob Hockett's thoughtful questions about how we ought to be analyzing the HHS mandate from the moral point of view, Sherif has offered a comment on the possible analogy with indirect governmental support for religiously-affiliated schools though voucher programs:

Grant that, as [Robert George] and I in our Public Discourse piece agreed with Prof. Hockett, there is a formal parallel between (a) the government's support of Catholic education through vouchers, and (b) the Church's (forced) support of contraception under the mandate. And suppose that the (forced) cooperation in the second case is unjustified cooperation with immorality, given the Church's views about contraception and abortion.

From these points, all we can infer from the government's willingness to subsidize parochial schools is that the the State doesn't think it immoral to be a Catholic, or teach children Catholic doctrine. But the kind of governmental "endorsement" of Catholicism banned by the First Amendment is not that. What the First Amendment forbids is for the government to endorse Catholic teaching as true, or otherwise favor Catholicism (in theory or practice) over other religions.

In other words, I think the worry that if you oppose the mandate, you should oppose school vouchers, rests on an equivocation on the term "support" between these statements:

--Out of respect for religious freedom, the Church shouldn't be made to support abortion and contraception.

--Out of respect for non-establishment, the government shouldn't support Catholic teaching by subsidizing Catholic education.