Mirror of Justice

Marriage Equality Bill Sponsored by Catholic Governor

The Washington State Legislature is poised to pass a marriage equality bill, which will likely make it the 7th state (9th US jurisdiction if one includes DC and the Suquamish Indian Tribe) to allow same-sex marriage. http://seattletimes.nwsource.com/html/politicsnorthwest/2017341256_gay_marriage_bill_voted_out_of.html As in Maryland, the Washington bill is sponsored by a Catholic Governor. http://ncronline.org/news/politics/same-sex-marriage-issue-facing-lawmakers-voters-several-states Washington Governor Christine Gregoire has explicitly addressed her discernment process over the past several years. http://www.huffingtonpost.com/2012/01/28/chris-gregoire-washington-governor-gay-marriage_n_1239058.html

The Importance of Institutional Pluralism

As Rick notes, Yuval Levin's piece today and Ross Douthat’s column yesterday are valuable reflections on the importance of institutional pluralism in a liberal society, a point underappreciated by many, including Douthat's colleagues on the editorial board. Yuval and Douthat show that the disagreement over the HHS mandate is a debate over whether and in what circumstances the coercive power of the state should be employed against the institutions of civil society. As Yuval observes, Catholicism (and especially American Catholicism) is a uniquely institutional form of religion, with social service agencies, hospitals, and schools at every level, and Catholic institutions are, not surprisingly, on the front lines of these battles. It strikes me that one’s view of the HHS mandate will often vary depending on whether one embraces “the logic of congruence,” in Nancy Rosenblum’s phrase, or a robust commitment to the freedom of civil society (churches, civic organizations, families, etc.), including toleration for views one sharply disagrees with. If the former, then you just have to bide your time until your side has a grasp on the levers of state power, and so, as Douthat points out, the increased authority of the state in these matters will eventually gore everyone’s ox--liberal or conservative, religious or not--depending on the politics of the administration. As Rosenblum and Robert Post put it in the introduction to Civil Society and Government (Princeton, 2002):

Advocates of congruence fear that the multiplication of intermediate institutions does not mediate but balkanizes public life. They are apprehensive that plural associations and groups amplify self-interest, encourage arrant interest-group politics, exaggerate cultural egocentrism, and defy government. What is needed, in their view, is a strong assertion of public values and policies designed to loosen the hold of particular affiliations, so that members will be empowered to look beyond their groups and to identify themselves as members of the larger political community. The “logic of congruence” envisions civil society as reflecting common values and practices “all the way down.”

All of this was diagnosed by Tocqueville, who saw that individualism and statism are reinforcing over time, crowding out religious and other forms of associational life for the allegiance of citizens:

As in periods of equality no man is compelled to lend his assistance to his fellow men, and none has any right to expect much support from them, everyone is at once independent and powerless. These two conditions, which must never be either separately considered or confounded together, inspire the citizen of a democratic country with very contrary propensities. His independence fills him with self-reliance and pride among his equals; his debility makes him feel from time to time the want of some outward assistance, which he cannot expect from any of them, because they are all impotent and unsympathizing. In this predicament he naturally turns his eyes to that imposing power which alone rises above the level of universal depression. Of that power his wants and especially his desires continually remind him, until he ultimately views it as the sole and necessary support of his own weakness.
 
It frequently happens that the members of the community promote the influence of the central power without intending to. Democratic eras are periods of experiment, innovation, and adventure. There is always a multitude of men engaged in difficult or novel undertakings, which they follow by themselves without shackling themselves to their fellows. Such persons will admit, as a general principle, that the public authority ought not to interfere in private concerns; but, by an exception to that rule, each of them craves its assistance in the particular concern on which he is engaged and seeks to draw upon the influence of the government for his own benefit, although he would restrict it on all other occasions. If a large number of men applies this particular exception to a great variety of different purposes, the sphere of the central power extends itself imperceptibly in all directions, although everyone wishes it to be circumscribed.
 
Thus a democratic government increases its power simply by the fact of its permanence. Time is on its side, every incident befriends it, the passions of individuals unconsciously promote it; and it may be asserted that the older a democratic community is, the more centralized will its government become.
 
Democracy in America, Vol. II, Pt. 4, Ch. 3

more on the Stolen Valor Act

While the Supreme Court is reviewing the Alvarez case from the Ninth Circuit, the Tenth Circuit (featuring a very good majority opinion by Judge Tymkovich) has upheld the constitutionality ofthe Stolen Valor Act. Here. Although Judge Holmes's dissenting opinion does not reach the same heights (or lows) as Judge Kozinski's paean to falsehood, I am still troubled by phrases such as this one--"little white lies (even those knowingly told and designed to deceive) that season are speech, like beneficent salt, ... preserve the grace and dignity of human relationships."

Richard M.    

Welcome to Mary Leary / "Catholic Schools Week"

First, I'd like to welcome to the MOJ crew Prof. Mary Leary, of Catholic University's Columbus School of Law. Professor Leary is a former AUSA, and her scholarship examines the intersection of contemporary social problems, criminal law, and criminal procedure.  (Read more about Mary and her work here.) 

Second, here is her inaugural MOJ post, on Catholic Schools Week:

This week marks an important week for the over two million students attending Catholic school in the United States.  Of course, I speak of the time honored tradition of “Catholic Schools Week.”

While this annual week of reflection and celebration is reserved for the primary and secondary Catholic schools throughout the country, there is certainly some room for its consideration on the university and post-graduate level.  Indeed, many a legal professor has either lamented a particular student’s struggles resulting from inadequate skill development, or praised and reaped the fruits of a well-equipped and inquisitive mind initially shaped in the student’s early education. One could argue that the success or failure of students in law school is directly affected by the effectiveness of many students’ early education.

This week may present an opportunity for us in legal education to think about the importance of Catholic education in the 21^st century.  This year’s theme is:  “Faith, Academics, Service.”  Such educational goals are not foreign to many Catholic law schools which seek to provide, not only outstanding academic preparation for the practice of law, but to produce highly ethical lawyers armed with the moral compasses necessary to navigate a challenging profession and serve those most in need.    This goal can be more easily achieved when students come to our law schools familiar with such priorities.

The importance of such an educational emphasis at all levels of education can be seen in the highest echelons of the legal system.  During the appointment of Justice Sotomayor much was made of the fact that six of the Justices could be categorized as Catholic.  However, it is important to note that four of the Justices are also the products of Catholic education at some level. 

Of course any law-school-based reflection on what it means to be a Catholic institution brings to mind Judge John T. Noonan’s 1992 Essay, A Catholic Law School, 67 Notre Dame L. Rev. 1037 (1992), where he writes, “[t]he main attraction of a Catholic law school should be the historical, jurisprudential, and ethical dimensions….”  (MOJ contributor Patrick Brennan revisited this piece on this blog after speaking at the Catholic University of America’s "Realizing the Promise of Religious Mission in Legal Education" in 2009. 

No doubt this is a valid observation, but one more achievable when the previous education of the students possesses these same characteristics as well.  The words Pope Benedict XVI shared with Catholic educators during his 2008 address at the Catholic University of America speak to all levels of Catholic education.  “It comes as no surprise, then… [that] society in general has high expectations of Catholic educators…. More and more people . . . recognize the need for excellence in the human formation….” 

Therefore, as we celebrate and reflect upon Catholic education this week, we may wish to consider the reality of financial burdens on American Catholic schools which are serving some of the most diverse and  needy populations in the country.  With an increasing number of Catholic schools closing their doors, the resultant cost is not only to primary and secondary education, but also graduate education and the nation itself when fewer students are trained in “Faith, Academics, and Service.” 

"Government and its Rivals"

It's common -- and correct, to a point -- to observe that the Catholic Social Tradition is more "communitarian," and emphasizes more the "social," than is and does classical liberalism / libertarianism.  At the same time, it is important to remember that the Tradition is not "statist," in the sense that it does not reduce "community" to "government." 

Ross Douthat writes, in the New York Times:

WHEN liberals are in a philosophical mood, they like to cast debates over the role of government not as a clash between the individual and the state, but as a conflict between the individual and the community. Liberals are for cooperation and joint effort; conservatives are for self-interest and selfishness. Liberals build the Hoover Dam and the interstate highways; conservatives sit home and dog-ear copies of “The Fountainhead.” Liberals know that it takes a village; conservatives pretend that all it takes is John Wayne . . .

. . .  But there are trade-offs as well, which liberal communitarians don’t always like to acknowledge. When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we “do together” as a government, in many cases, the fewer things we’re allowed to do together in other spheres. . . .

. . . 

The more the federal government becomes an instrument of culture war, the greater the incentive for both conservatives and liberals to expand its powers and turn them to ideological ends. It is Catholics hospitals today; it will be someone else tomorrow.

The White House attack on conscience is a vindication of health care reform’s critics, who saw exactly this kind of overreach coming. But it’s also an intimation of a darker American future, in which our voluntary communities wither away and government becomes the only word we have for the things we do together.

I agree.  And, I tried to elaborate on similar themes, about ten years ago, in this article, about the mediating, educating, and formative role of associations:

In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.

UPDATE:  Yuval Levin sets out a similar argument -- about the civil-society dimension of the HHS mandate debate -- here.

Archbishop Chaput on school choice and Catholic Schools Week

Philadelphia's Archbishop Chaput kicks off Catholic Schools Week with a punchy essay in support of school choice.  He ends with this:

When vouchers stalled, yet again, in the Pennsylvania house last fall, a frustrated Catholic school teacher friend of mine said “Catholics are suckers.” I don’t believe that. But then, I’m new in town. If we Philadelphia Catholics love our Catholic schools, and we obviously do, then the time to get active and focused is now. We need to begin pressing our state lawmakers to pass the school choice legislation — including vouchers and expanded EITC credits — that’s currently pending in Harrisburg. And we need to do it this week, today, right now. I plan to do that. I hope you’ll join me.

Indeed.

Dana Dillon on the mandate and cooperation with evil

At the Catholic Moral Theology blog, Dana Dillon helpfully (to my mind) walks through the cooperation-with-evil analysis with respect to the HHS mandate.

Authority and the Law

 

As you may recall from yesterday’s readings at the Fourth Sunday of Ordinary Time, the theme of authority was addressed in the reading from Deuteronomy and St. Mark’s Gospel. Authority is an important subject common to both Christianity and the civil law. What should Catholic legal theory’s take be on the matter?

Law that we encounter daily in civil society is a mechanism for exercising authority through the development of human norms that should be: (1) an exercise of human intelligence exercising objective reasoning that (2) takes stock of and responds to the needs of the intelligible reality that surrounds us. These two factors combine to formulate prudent normative principles that become the human law of the society for which they are promulgated to further the common good—the good of each individual and the good of everyone.

Of course, authority does not always proceed in this fashion. I suppose one reason that it does is because it possesses a sense of freedom to do what the authority wills. But this kind of freedom can be divorced from the exercise that comprehends and serves the common good. An illustration of this might be the recent HHS promulgation of regulations that will have a deleterious impact on Catholic institutions.

Here is where a thought borrowed from Lord Acton could help the authority that exercises its freedom in the promulgation of law: freedom is not what the authority wants to do; rather, freedom is what the authority must do in spite of what it wants to do. It is this latter context where human intelligence comprehending the intelligible reality has its best chance of making laws that further the common good.

 

RJA sj

 

Religious liberty and SSM in the State of Washington

Here is a letter (Download Washington letter), from Prof. Robin Fretwell Wilson, Tom Berg, Carl Esbeck, and others to legislators and officials in Washington, urging them to include meaningful protections for religious freedom in that state's pending same-sex-marriage legislation.

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

The informed readership at MOJ of course knows that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application -- where a system of individualized assessments with respect to exemption from the law has been adopted -- then the law is again subject to strict scrutiny.  I've looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out...a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school's "no referral to other counselors" policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see this item.  You might wonder just how powerful the individualized assessment exception is...you will have to wait for my book to see just how much!

The third exception carved out by Smith was for the church autonomy cases, and at one time it was not clear whether the ministerial exception would fall into that exception.  In Hosanna-Tabor, the Court made clear that it did.  And now (courtesy of the excellent Professor Friedman at Religion Clause blog), it seems that the South Dakota Supreme Court has extended Hosanna-Tabor to apply outside the employment context to a case about the potential dissolution of a particular religious group.  It is too early to tell what will happen...but...it may be that because of Hosanna-Tabor's uncertain scope, lower courts (state and federal) will extend it in unexpected directions -- and directions which differ one from another.  

If this does happen, I think we may witness (in conjunction with the continuing expansion and complication of some of the other exceptions) the taming of Employment Division v. Smith.  Smith will not be overruled, but it may be substantially chipped away in various ways.  And so what appeared once -- to opponents and supporters alike -- to be a rule of iron predictability, will in fact become something very different.   

St. Thomas and the Sanctity of Mind

As Rick notes, today is the Feast of St. Thomas Aquinas. Here's a bit from a homily preached at Blackfriars (Oxford) on this feast by my late friend Herbert McCabe, OP:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?

....

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

Dean Search at St. Thomas

Many of you know that at St. Thomas we are launching a dean search, now that Tom Mengler has announced he is leaving the deanship after 10 wonderful years.  I am co-chairing the search.  Please nominate candidates.  We're at an important moment for legal education, full of challenges and opportunities, especially for a Catholic law school like ours committed to excellence, to preparing students for the changing demands of the profession, and to the integration of faith with the study and practice of law.  I believe that our school is well positioned for this moment and that leading it can be a great source of satisfaction--in the best sense of purpose and calling--for the dean.  The webpage for the search process is here and will be updated as the search proceeds.  But let me take the liberty of posting the position announcement after the page break.

Tom  

Continue reading "Dean Search at St. Thomas"

Happy Feast of St. Thomas Aquinas!

Here is a reflection from Fr. Robert Barron, at Word on Fire.  And, if you do not yet own Chesterton's The Dumb Ox . . . fix that.

"Social Justice, Institutions, and Communities"

I really enjoyed this essay, by Adam MacLeod, at Public Discourse, on "Social Justice, Institutions, and Communities."  A bit:

If free institutions protect only the rights of the individual to pursue his own material comfort, then they are difficult to reconcile with the demands of justice. But viewed as communal institutions that serve truly common goods—ends that are both good for all and known to all, though realized in plural and incommensurable varieties—free institutions can act as vehicles of both opportunity and justice. Indeed, they might render obsolete the trench warfare between the individual and the state that pervades much contemporary public discourse about questions of justice. . . .

. . . A successful account of social justice must affirm the primacy of communities, and institutions directed by communities, over both the individual and the state in promoting human flourishing. The job of the individual in promoting social justice is to act in concert with others in his or her community to serve real needs, both within the community and in other communities. The job of the state is to support and enable free institutions—the church, the family, property ownership, charitable organizations, for-profit businesses, trade groups—to do their good work. This perhaps is not all that social justice requires, but it is a good place to start.

 

Bishop Jenky's powerful intervention

My former pastor, currently the bishop of Peoria, Rev. Daniel Jenky, C.S.C., has released a very strongly worded letter in response to the HHS decision regarding the contraception-coverage mandate.  I particularly like his call for parishes to conclude masses with the Prayer to St. Michael the Archangel!

Richard Stith on the Pope's meeting with U.S. Bishops

MOJ-friend Richard Stith reports, at the University Faculty for Life blog, on the Pope's recent meeting with U.S. Bishops, and on his call that they, and all the faithful, mobilize in support of religious freedom.

Skeel on Religious Freedom in the Wall Street Journal

My friend David Skeel (Penn Law) has a good op-ed in today's Wall Street Journal about recent religious freedom matters. I thought this point about the politics of religious freedom was especially well-taken:

The Obama administration's reluctance to accommodate is also at odds with many years of progressive efforts to enhance protection for those whose religious views are out of the mainstream. Liberals were strong supporters of the Supreme Court's decision to exempt Jehovah's Witnesses from saluting the flag in 1943, and they were vociferous critics of a 1990 Supreme Court decision that upheld the denial of unemployment benefits for Native Americans who smoked peyote, an illegal drug, in religious ceremonies.

The Road Not Taken: Catholic Legal Education at the Middle of the Twentieth Century

Some time back Marc DeGirolami noted (here) that Lee Strang and I had recently published an article on the history of Catholic law schools in the American Journal of Legal History.  We only just last week received a PDF of the article which is entitled The Road Not Taken: Catholic Legal Education at the Middle of the Twentieth Century.  The piece is now available on the hyperlink text above and in the column at the right-hand side of the MOJ webpage.

In the article we explore the fact that a serious proposal for the reform of Catholic legal education was made by several prominent Catholic legal academics in the 1930s and 1940s – a proposal that would have made Catholic law schools more distinctively Catholic.  Yet the proposal was never adopted in earnest by even one school such that Catholic law schools continued to mimic their non-Catholic and secular peers in ways that were both beneficial and debilitating.  In the article we explore the various reasons behind the failure of the reform effort.

This article is part of a larger, book-length project that Lee and I are engaged in – to write a comprehensive history of Catholic legal education in the United States.  We will present a draft of the next chapter in the story covering the period from 1960-1990 at the upcoming conference on The Competing Claims of Law and Religion hosted by Pepperdine University School of Law and its Nootbaar Institute on Law, Religion and Ethics, February 23-23, 2012.

We welcome feedback on the project as a whole, and this particular installment of it, from all interested readers.

Eric Bugyis responds to Rick Garnett on conscience and the mandate

Here is Eric Bugyis's response to my earlier post, "Confusion about Conscience":

Rick, Thanks for your reply. It’s always fun to go back and forth with you on this (and I am being sincere!). In the long avalanche of commentary on the various posts that went up at Commonweal (including Grant Gallicho’s reiteration of Commonweal’s editorial position, which is different from my own, David Gibson’s, which seems similar to Grant’s, and Lusa Fullam’s commentary on David DeCosse’s NCR piece, both of which, I think, support my own view), some of us came to some slight agreement on the situation. 

Grant boiled down the issue to this: “The nature of the dispute is the problem raised by the government’s decision to force religious institutions to act in a way that violates their moral teaching.” We agreed that in the case of, say, Jehovah’s Witnesses denying life-saving blood transfusions to non-JW patients or coverage to non-JW employees, the government would have a supervening interest to protect the life/health of its citizens by mandating that JWs either provide these services or get out of a business in which they would be expected to provide them or, perhaps, be fined so that the government could provide them. So, the question seems to be: When does the interest of the State to protect the rights of its citizens supervene on the freedom of religion of those who would conscientiously object to providing the services to which their patrons or employees are entitled? 

This determination has absolutely nothing to do with the conscientious objection itself or the specific religious reasons for it. In the case of JWs, it is not within the competence of the government to consider JW theology in deciding that a non-JW individual’s access to blood transfusions is important enough to supervene on the religious views of a JW doctor or employer. Mutatis mutandis, the Catholic Church’s moral teaching on contraception and the consciences of Catholic employers have nothing to do with determining the minimum healthcare provisions that will be included in an employee’s right to coverage.

The only consideration is whether contraception (or, indeed, any medical service) meets the criteria for inclusion, which includes some combination of weighing health risks versus benefits, the financial burden and relief involved, the impact on long-term health and quality of life, etc. 

You argue that “we make efforts to specially accommodate religion-based objections,” but I’m not sure that this is or should be an expectation placed on a government that explicitly claims to refrain from adjudicating which religion-based objections can and cannot be accommodated, which would involve concluding that some religious-reasons are better or worse, at least in the eyes of the State. In the case under consideration, this would mean that although blood transfusions and contraception have both been deemed “medically necessary” as part of the basic right to healthcare, the government would be deciding that Catholics have better religious reasons than JWs to claim exemption. Now, you can argue that contraception is not “medically necessary” and blood transfusions are, but this is a properly “public” argument that does not require any recourse to religious premises. 

So, the Bishops are clouding the issue when they claim a right to exemption based on conscience, which in a pluralist democracy is a question of an individual’s ability not to be directly and unduly coerced to personally engage in activities that challenge his or her moral convictions, or religious freedom, which protects the direct exercise of religious belief and practice by groups of like-minded individuals. The Obama Administration has already made the necessary provisions by allowing that any group of explicitly confessing like-minded individuals engaged in religiously-informed work with and for co-religionists can choose to have an insurance plan that does not cover the services to which they ALL object, and, of course, any individual can deny any medical service to which he or she personally objects. However, if one is going to serve and employ non-co-religionists, it is in the direct interest of a representative democratic government, which has determined that access to minimum “medically necessary” care is a right, to make sure that all of its citizens have the opportunity to exercise that right, via the mechanisms put in place to enable it. You can object to the right itself, the criteria governing “medical necessity,” or the method by which healthcare is being distributed, but none of these objections have anything to do with religion, and they certainly have nothing to do with the Bishops.

In my view, Eric's closing statement that the objections have "nothing to do with religion" is wrong.  One of the key reasons why, say, the Bishops, or Fr. Jenkins, or Sr. Carol, object to the mandate is because they believe compliance with the mandate would compromise the integral Catholic character of (at least some) Catholic institutions.  So, the mandate burdens their religious freedom, because religious freedom at least presumptively includes the freedom to construct and operate such institutions.  The question is whether the burden is justified -- is it necessary to secure public order, for example? -- or whether, given our traditions, the better course is to accommodate them.  Accommodations of religion always involve compromising, to some extent, the policy choices made by the majority in a diverse, pluralistic, etc., society.  The point is, a society that is constitutionally committed to religious liberty is willing to pay some "costs" for accommodating religious objections, because religious liberty is valued (it's worth "paying for").  And here, the cost, all things considered, is low; it would not be (that) hard to accommodate the objections while still achieving the state's public-policy goal.  Because it would not be (that) hard, the refusal to accommodate -- when so many accommodations are being granted to those who object to other burdensome provisions of the mandate -- is revealed, I think, as what it is:  A cynical imposition that transfers the cost of the government's policy goal (one that Congress did not vote on) to (primarily) Catholic institutions, in a way that will please the President's political base (and others who enjoy, for various reasons, seeing the Bishops lose).   

Eric says the question is "[w]hen does the interest of the State to protect the rights of its citizens supervene on the freedom of religion of those who would conscientiously object to providing the services to which their patrons or employees are entitled?"  True, this is often the question, and it's often a difficult one, and I agree that not all -- not even most, probably -- religious objections to legislative decisions can accommodated.  It's not possible, or desirable.

But, it's not the question here.  The merits matter.  Children do have a right -- one that is not the product of a (controversial, passed-by-narrow-margin) statute and an expansive administrative interpretation of that statute -- to be protected from violence and neglect.  Employees do not have a right -- again, except in an unhelpful "they do, because the statute, as remade by the agency, says they do" -- to have the government make their employers pay for their contraceptives. 

Good job, Europe!

Seriously:

Yesterday, the Parliamentary Assembly of the Council of Europe (PACE) adopted a non-binding resolution stating: “Euthanasia, in the sense of the intentional killing by act or omission of a dependent human being for his or her alleged benefit, must always be prohibited.”

Confusion about "conscience"

Eric Bugyis and I share a respect for Stanley Hauerwas.  HIs reaction to the HHS contraception-mandate decision, though, is very different from mine.  "Obama defends conscience," he writes, by which it appears he means that the President, unlike the Catholic Church, respects the consciences of those who believe that it is not immoral to use contraceptives, including early-abortion-causing drugs.  He writes:

This is, of course, a victory for all those who care about the religious liberty of individuals and the freedom of individual conscience, which by definition is meant to be protected from the unwelcome coercion by institutions to do things (or not do things) that are not relevant to the performance of one’s explicit duties to them, including one’s employer. The Obama administration did offer one gratuitous concession to those religious institutions.

It is, "of course," not a victory for those who care about the religious liberty of individuals, and it is, in my view, Bugyis's thinking, and not the Bishops', whose thinking on this matter is regrettably "muddled."  (I am afraid that his suggestion that Archbishop Dolan would do well to take the year which the Administration has given him to prepare for the mandate's imposition to "reflect on what the concept of 'conscience' actually means" goes beyond mistake-making into unattractive and unworthy snark.)  The notion that the refusal of a religious institution to subsidize an another's activity to which the institution objects on moral grounds is meaningfully analogous to a legal, punishment-backed requirement that such an institution subsidize such activity is, again, confused.  The "coercion" involved in the mandate saga is the coercion by the government of religious objectors; the employers who do not want to pay for (even indirectly) their employees' contraception are not "coercing" those employees to do anything.  Bugyis thinks the Church fails to respect the consciences of those who reject the the Church's teaching on contraception but the Church is not fining such people for their unbelief.  (The claim of some that, because the government has declared that contraception-coverage is now -- because the government has declared it so -- a baseline entitlement, and so a refusal to subsidize is equivalent to a fine is cute, but unpersuasive.)   

Yes, a meaningful exemption could mean that employees of Catholic institutions who want to purchase and use contraception have to pay more, but policies which raise slightly the cost of an activity are not helpfully or even plausibly regarded as forbidding that activity or as coercing people to forbear from engaging in it.  (Never mind the fact that the government, if it wanted to, could easily subsidize the activity itself; but why bother when you can make religious employers do it?)  Yes, in a democracy, in a political community in which people disagree, it will sometimes be the case that some people and institutions will be required to comply with legal directives to which they object.  That's life.  But in a political community that cares about religious freedom (as ours does), we make efforts to specially accommodate religion-based objections, especially in cases where (as here) it is easy to do so.

Bugyis writes, "[a]s it stands, the bishops and other religious leaders seem intent on protecting their prerogative to coerce rather than counsel, and this is a slap in the faces of the faithful, who have already endured and forgiven so much loss of moral credibility among their clergy."  Again, the bishops are not "coercing" anyone, and the question whether the Church's teaching on contraception has been persuasive (to most people, obviously, it has not), should be entirely irrelevant to the question (I understand that it is relevant to the Administration's political calculations) whether a government that is constitutionally and culturally committed to religious freedom should make Catholic institutions subsidize employees' contraception.  At the end of the day, it seems to me that Bugyis welcomes the mandate out of something like spite, as a kind of justified punishment, or come-uppance, of the Church for its failure to confess error and reform in the direction he would like.  Very disappointing.

The HHS mandate and religious freedom

I'm not sure I have much to add to what I wrote here about the HHS mandate and religious freedom.  The mandate is bad policy, in part because it imposes a burden, without good reasons, on the religious freedom of Catholic and other religious institutions.  It would not have been difficult to craft a policy that allowed an exemption to employers with religious objections to the mandate and that provided government contraceptives-purchase support to employees of such institutions.  

In addition to the Washington Post editorial criticizing the mandate, there have been powerful expressions of disagreement from liberal and center-left observers, including Roger Cardinal Mahony and Michael Sean Winters .  Archbishop Timothy Dolan has been particularly outspoken, and convincing, in his interventions, in USA Today  and the Wall Street Journal.  I also recommend Archbishop Jose Gomez's piece in First Things, "A Time for Catholic Action." 

The decision seems particularly cynical and insulting when one considers the support that Sec. Sebelius received from some prominent Catholics and the tone and content of the speech that Pres. Obama delivered at Notre Dame.  Coupled with the bizarre and extremist brief that the Administration filed in the Hosanna-Tabor case, this decision may reasonably seen as a betrayal of those Catholics who actually believed that the President intended to lead an administration that was sensitive to religious-liberty concerns.

The decision is all the more unattractive for being so obviously political, in a low sense.  It appears to me that the Administration simply decided that -- perhaps because the Bishops' stock is low in American culture at the moment, and perhaps because the polls and many advisors assure them that, because most Catholics report that they don't accept the Church's teachings on contraception (remember, though, this mandate covers some abortion-causing drugs, too) -- it would not face any serious political cost if it imposed the mandate, but it would demoralize "the base" during a re-election campaign if it did not.  Catholics were quite useful during the 2008 campaign and, apparently, the Administration believes that this decision will not cause Catholics to stay home or switch sides in sufficient numbers to undermine the 2012 effort.

Again, Archbishop Gomez:

But the issues here go far beyond contraception and far beyond the liberties of the Catholic Church. They go to the heart of our national identity and our historic understanding of our democratic form of government. In his address last Thursday, Pope Benedict gave us some prophetic advice for these troubling times:

Here once more we see the need for an engaged, articulate and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with the courage to counter a reductive secularism which would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society. The preparation of committed lay leaders and the presentation of a convincing articulation of the Christian vision of man and society remain a primary task of the Church in your country; as essential components of the new evangelization, these concerns must shape the vision and goals of catechetical programs at every level.

 

There will be much more to say about this in the weeks ahead. But this much is clear at the present moment: Now is a time for Catholic action and for Catholic voices. We need lay leaders to step up to their responsibilities for the Church’s mission. Not only to defend our faith and our rights as Catholics, but to be leaders for moral and civic renewal, leaders in helping to shape the values and moral foundations of America’s future.

Greve on the HHS Mandate

In contrast to the bizarre argument underway in some forums that the HHS mandate is the Church's own fault or that this is a great victory for individual conscience against oppressive religious institutions, I'd like to think that MOJ's distinctive role in our little corner of the blogosphere is to bring us back to the legal issues in play, since we are, after all, talking about administrative implementation of a federal statute. To that end, Michael Greve has a post at the Liberty Law Blog that spells out the unprincipled and ad hoc means by which the Administration has gone about this whole process:

The Affordable Care Act (ACA) requires certain employer health plans to cover preventive care for women without co-pays or deductibles, “as provided for in comprehensive [but then non-existent] guidelines supported by the Health Resources and Services Administration [HSRA].” ACA §1273 (a)(4). In July 2010, HHS proposed an IFR to the effect that “preventive” care should encompass pregnancy prevention, and it instructed the private Institute of Medicine (IOM) to provide guidance. The IOM invited and heard presentations from such groups as the National Womens Law Center, Planned Parenthood, and the Guttmacher Institute (but not from any religious group). Predictably, the IOM urged inclusion of the full panoply of FDA-approved devices and procedures, including sterilization and so-called “morning-after” and “week-after” pills. (These drugs “prevent” pregnancies after they have begun. Many Christian denominations in addition to the Catholic Church view them as abortifacients.) Within less than two weeks, without further notice or public comment, HHS adopted this position in an IFR and HSRA issued guidelines. 76 Fed.Reg. 46621 (published Aug. 3, 2011), 45 C.F.R. § 147.130; http://www.hrsa.gov/womensguidelines.

Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.

This “process” has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t. And the administration has proceeded by IFR, without the full notice-and-comment rulemaking apparatus of the Administrative Procedures Act. The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security). A rule that can be suspended for a year can’t have been that urgent to begin with.



Incarceration and the Bill of Rights

One of the great pleasures of teaching multiple courses is to see the many threads that connect them.  This is not to say that law is a seamless web.  It isn't.  But there are twisting and turning concatenations.  This is happening for me this semester with criminal law and constitutional law.  One little example is that my view of the congressional delegation to the US Sentencing Commission in Mistretta is colored by the knowledge that the Sentencing Reform Act contains a panoply of justifications of punishment -- and so my first reaction after reading the case was to wonder whether a group of folks with no electoral accountability and no obvious constitutional warrant should be charged with the eminently political task of balancing conflicting theories of punishment that will bind the rest of us. 

I spotted another perhaps more macrocosmic crossover in this column by Adam Gopnik, which discusses some of the claims by the late Professor William Stuntz in his book, The Collapse of the American Criminal Justice System.  The argument in Gopnik's piece, which he attributes to Stuntz, that especially interested me was this.  In searching for a reason why the United States incarcerates more people than other Western European countries, Gopnik writes that Stuntz traces the problem:

all the way to the Bill of Rights.  In a society where Constitution worship is a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system -- much inferior to the exactly contemporary French Declaration of the Rights of Man....

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles.  The Declaration of the Rights of Man says, Be just!  The Bill of Rights says, Be fair!  Instead of announcing general principles -- no one should be accused of something that wasn't a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done -- it talks procedurally.  You can't search someone without a reason; you can't accuse him without allowing him to see the evidence; and so on.  This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice....

The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality.  The more professionalized and procedural a system is, the more insulated we become from its real effects on real people.  That's why America is famous both for its process-driven judicial system...and for the harshness and inhumanity of its prisons.  Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated.

It's an interesting piece, and I should mention that I haven't read Professor Stuntz's book.  But I'm dubious about at least some of these claims.  Some questions about this thesis after the jump.

Continue reading "Incarceration and the Bill of Rights"

Philip Hamburger at St. John's Law School

My teacher and friend, Philip Hamburger, will be visiting us at St. John's Law School next Monday, January 30, at 4:00.  His visit is the first in a new seminar that Mark Movsesian and I have put together, Colloquium in Law: Law and Religion.  Academics in the New York area and beyond are invited to attend these sessions.  Please write to me or Mark if you would like to come.