Mirror of Justice

"Massive lawsuits, minor coverage"

I know, I know -- "conservative" claims about "media bias" are really just disigenuous efforts by Rove-ian right-wingers to distract attention from the awesome power of Fox News, EWTN, and Rush Limbaugh.  Still, as the folks at Get Religion discuss in detail, the near-silence of many traditional media outlets regarding this week's lawsuits by Catholic institutions against the administration is striking (and contrasts glaringly with their consistent and close interest in other kinds of legal proceedings involving such institutions).  It's almost as if -- I know, I know, it's not, but still . . . -- some people with significant power over information flow are trying to minimize, in an election year, the extent to which the word gets out that the administration is being sued by 40-plus Catholic institutions, schools, and social-service agencies for violating fundamental religious-freedom rights.  Of course, this relative silence is for the best, since the blogosphere's armchair lawyers and mind-readers have assured me that the lawsuits are frivolous, premature, divisive, and / or deviously partisan, and we wouldn't want people to get the wrong idea.

A quick response to Winters on conscience and Smith

Michael Sean Winters has been blogging a lot, in recent days, at Distinctly Catholic, about the mandate, the lawsuits, and religious liberty.  In this post -- which is about many things, including the remarks by Bishop Blaire that some are trying to frame as revealing deep partisan divisions on the bishops -- he makes (among other things) two claims that, in my view, are not quite right.

First, there is the claim -- which, I admit, is widely accepted, and accepted by many I respect -- that it is the Smith case, and not the recent acts and decisions of the current administration, that should be regarded as an unprecedented and dangerous assault on religious freedom.  Some make this claim because they believe that Smith represents a wrong interpretation of the First Amendment, I know, but I think that some make it just because it's kind of fun to put Justice Scalia in the religious-freedom-villain hot-seat.  Still, as I''ve probably said too many times, the claim is wrong.  (For an elaboration of my view, go here.)  Smith was contestible, but I think correct, interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials  elected officials to respect and accommodate religious liberty, to the extent possible.  Smith is a "who decides?" case (ed.:  aren't they all?  RG: yes, yes, I know . . . .), not a "religious freedom should lose to state interests" case.

Winters also criticizes calls for respecting and accommodating individual conscience (as opposed to institutions' religious freedom and the freedom of the church).  He writes:

You can cherry pick a couple of sentences out of Dignitatis Humanae, the Second Vatican Council’s Decree on Religious Liberty, to justify such a stance, but my fear . . . is that by emphasizing the right to individual conscience rights, in a culture which understands conscience differently from the way Catholics understand it, the USCCB was unintentionally “feeding the beast” of libertarianism in a political culture where libertarianism is the cancer that most afflicts our Catholic understanding of the Common Good. For us, conscience is the voice of God speaking to us about our moral obligations in the concrete circumstances of our lives. In the ambient culture, conscience is private judgment. Why would the USCCB support an argument that sides with the sixteenth century Reformers on the central issue of their day and our day: Is truth someone we discern and discover, and always together, or is it something we manufacture on our own?

Certainly, I'm a big fan of the Freedom of the Church (Read this.)  And, Winters is right that most in contemporary America -- including, remember, many Catholics who invoke "conscience" as authorization to act not in accord with certain Church teachings -- have an unsound, purely privatized understanding of "conscience."  And, I even agree with Winters that there will, in some cases, be good, "politics is the art of the possible" reasons to distinguish, when crafting religious-liberty accommodations, between exemptions-for-institutions and exemptions-for-individuals.  All that said, it is not "cherry picking" to find in Dignitatis Humanae -- it's right there! -- a clear affirmation of the right of every person to religious liberty:  "This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits." 

In saying this, the Declaration is not endorsing the private-judgment view of conscience; instead, it is proclaiming that it is an implication of the human dignity of every person that, even when he or she is wrong in religious matters, he is not to be forced "to act in a manner contrary to his own beliefs . . . within due limits."  Winters does not need, I think, to downgrade or link with libertarian and Protestant errors the religious-liberty rights of individuals.  I think it's enough for him to simply remind us that "within due limits" does important work. 

What is a Religious Institution?

One of the more interesting issues in the controversy over the HHS mandate (or perhaps I should say one of the few that hasn't been flogged to death in the blogosphere) is the precise language regarding the scope of the exemption that HHS included for some religious employers. The final rule states that an institution is a "religious employer" for purposes of the exemption if it "meets all of the following criteria:"

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization [under the Internal Revenue Code].

45 C.F.R. § 147.130(a)(iv)(A)-(B).

Not surprisingly, those of us who object to the mandate regard this exemption as impermissibly narrow and, moreover, illegitimate government interference in deciding what does and does not constitute a "religious employer." I'm prompted to make this point because of a comment over at dotCommonweal that the exemption "is deliberately vague, of course, and there are good reasons to object to the way the Department of Health and Human Services designed the exemption--although that the government would try to figure out which institutions are religious and which are not is hardly unprecedented" (and linking to an earlier post on America's blog saying that the langauge of the exemption comes from labor and employment law). A few quick points for discussion:

The language of the HHS mandate is not (pace the author at America's blog and others inclined to view this as rulemaking as usual) borrowed from (and is substantially narrower than) religious exemptions in other regulatory settings such as labor and employment law. NLRB v. Catholic Bishop. 440 U.S. 490 (1979) and lower court interpretations of Catholic Bishop in such cases as Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc) stand for the proposition that the state cannot (as a matter of statutory interpretation of the NLRA operating under a doctrine of constitutional avoidance) pick and choose which church-affiliated institutions are "sufficiently" or "completely" religious. See also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343 (1987) (Brennan, J., concurring in the judgment) ("[D]etermining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.”)

In employment law, cases such as LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that the exemption for religious institutions from Title VII's prohibition on discrimination based on religion is reasonably broad. As Judge Roth puts it in LeBoon:

First, religious organizations may engage in secular activities without forfeiting protection under Section 702....

Second, religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection....

Third, religious organizations may declare their intention not to discriminate, as the LJCC did to the United Way and in its employee handbook, without losing the protection of Section 702....

Fourth, the organization need not enforce an across-the-board policy of hiring only coreligionists....

We disagree with LeBoon's contention that the LJCC's willingness to welcome Gentile members and even to host Hindu services is incompatible with the view that the LJCC was a religious organization. Indeed, these characteristics are clearly tied to some of the Jewish principles that guided the LJCC-tolerance toward other faiths, healing the world, and doing the right thing. We will not deprive the LJCC of the protection of Section 702 because it sought to abide by its principles of “tolerance” and “healing the world” through extending its welcome to non-Jews.

503 F.3d 217 at 230.

So where did the HHS mandate exemption language come from? As one of the lawyers on the cert petition in 2004 challenging California's contraceptive mandate, I am fairly certain that the narrow, four-prong test in the HHS mandate initially appeared in a revised 1999 draft bill by then-California state senator Jackie Speier (now a US representative). In short, the language in the HHS exemption has always been about coercing Catholic social service agencies, hospitals, and universities and colleges to provide contraceptive coverage, and the problem now is the same that my colleagues and I stated then:

Catholic Charities’ stated purpose is not to “inculcat[e]” religious values, but to carry out the Church’s religious mission to perform corporal works of mercy. It provides social services to anyone in need, whatever his or her religious beliefs. And it employs those who, regardless of their own religion, embrace Catholic Charities’ mission and understand that it is pursued in conformity with the faith and teachings of the Church of which it is a part. In the judgment of the State, Catholic Charities’ religious rights are forfeited for these reasons—because, to put it bluntly, it puts its religion into practice and does so in an all-inclusive way. There is, California seems to say, something less religious about such an organization. A truly religious organization, in its view, would be more exclusive in its associations, more single-minded in its purpose, and less concerned about the welfare of others. It would be concerned only with drilling, or “inculcating,” its beliefs into the minds of its adherents.

There is no precedent for such a narrow view of religion.

A quick response to Prof. Cafardi

Over at America, Prof. Nicholas Cafardi, whose work is probably familiar to many MOJ readers, has a post that is critical of the decision by Catholic institutions' to file lawsuits challenging the preventive-services mandate.

Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."

With all due respect, this charge misses the mark. These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way -- besides making objecting religious employers bear the cost -- of subsidizing contraceptives for women who work at such institutions. The imposition here is coming not from the plaintiffs, but from the Administration.

Prof. Cafardi also writes: "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?" But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.

As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed. It is entirely reasonable for these institutions -- who are subject to costly obligations *now* to prepare to comply with the current mandate -- to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road.  And, in any event, even the floated changes do nothing about the troublingly narrow religious-employer exemption contained in the current mandate.

"Pro-decision-making"?

In a National Catholic Reporter article, Doug Kmiec says the following:

The pro-abortion, even pro-infanticide, label tossed at Obama throughout the 2008 campaign was both unfair and contestable. The president is pro-decision-making by pregnant women, but he is not at all shy of saying how he hopes the decision would be made. Here is what the president said to the Domers:

"Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions. So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

"Pro-decision-making by pregnant women." So this is how we, as defenders of the lives of children in the womb are to characterize the question of abortion? Someone like President Obama who would protect the lawfulness of deliberate feticide, enact policies to make it as widely available as possible, and support its funding with taxpayer money is not pro-abortion, he is merely "pro-decision-making by pregnant women"? Even when the decision (carefully left undescribed) is, in truth, a decision about whether to kill the child? It's this kind of abuse of language that people seem always to resort to when we want to obscure from view a deep injustice that is being done against our fellow human beings.

On the question of the fairness or unfairness of criticism of Barack Obama on abortion and infanticide, I would defy Doug or anyone else to identify errors of fact regarding what Obama has said and done in either of these two 2008 articles on the subject.

"Obama's Abortion Extremism":

http://www.thepublicdiscourse.com/2008/10/133

"Obama and Infanticide":

http://www.thepublicdiscourse.com/2008/10/282

What Yuval Levin and I report (and document) in these articles is either true or false. If it is false, the President's defenders should have no difficulty in exposing the falsehoods, since every point we address is a matter of public record.  If what we report is true, then it is the defenders---at least the ones who continue to regard themselves as pro-life---who have some explaining to do, not his pro-life critics.

Winters on the Notre Dame Contraception-Mandate Suit

Overall, I think, a fine post by MIchael Sean Winters on Notre Dame's suit. There's some inflammatory language ("Sebelius and her fellow travelers") in a post that condemns inflammatory debate, but overall it seems to me incisive, and hard-hitting in the right places and manner. Money quote:

The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship.

The Notre Dame complaint and Fr. Jenkins's letter explain cogently why, even assuming the administration's good faith in its claim to be seeking further accommodation, Notre Dame could not wait until it all might get sorted out. As is true in many cases, I think, the language of his message packs extra punch (more than most interventions on both sides of this debate) because it is measured, non-demonizing, and simply lays out the steps in the university's reasoning:

Although I do not question the good intentions and sincerity of all involved in [the further-accommodation] discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. . . . We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.

"Neutrality and the Good of Religious Freedom: A Response to Prof. Koppelman"

A little while ago, Bob Cochran and the crew at Pepperdine hosted a great conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”  (Here, here, and here are some earlier MOJ posts on the conference.)  I was honored to be asked to respond to Prof. Koppelman's invited lecture (which is based on his forthcoming book, Defending American Religious Neutrality), but the festering miasma of evil that is contemporary air travel delayed my arrival so that I was too late to share my response with the conference.  So, thanks to SSRN, several months later, here it is:

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

Coverage of the contraceptive mandate lawsuit

Get Religion analyzes the media coverage of the lawsuit filed yesterday against HHS by a few dozen Catholic organizations.  For example, here's an excerpt from the Tribune News Service:

The Catholic organizations, which filed the suits in federal courts across the country, argue that the federal mandate infringes on their religious freedom because it violates church teachings.

As Get Religion helpfully notes, "[T]he key to the religious liberty claims is not that these new federal rules violate church teachings. The problem is that the mandates require religious institutions to violate their own doctrines, traditions and teachings."

Waldron on Natural Law

Jeremy Waldron has posted "What is Natural Law Like?"  The abstract:

The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

Notre Dame (and others) file federal-court lawsuit challenging HHS mandate

Here is a link to the complaint filed this morning by the University of Notre Dame, challenging the Administration's "preventive services" mandate.  Here is an excerpt from the announcement by Fr. Jenkins, the University's president, to the Faculty and Staff:

. . . Let me say very clearly what this lawsuit is not about:  it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services.  Many of our faculty, staff and students -- both Catholic and non-Catholic -- have made conscientious decisions to use contraceptives.  As we assert the right to follow our conscience, we respect their right to follow theirs.  And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.  We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so. 

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives.  For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.  For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements.  If that happens, it will be the end of genuinely religious organizations in all but name. . . . 

Here is the statement of John Garvey, the President of Catholic University.

In my view, these lawsuits -- which are the result of the Administration's overreach, and not of any effort by religious institutions or leaders to "pick a fight" -- are efforts to vindicate the country’s constitutional and traditional commitments to religious freedom and pluralism.

These latest lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act, and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate.  This mandate imposes a serious and unnecessary burden on many religious institutions’ commitments, witness, and mission.  It purports to require many religious schools, health-care providers, and social-welfare agencies to compromise their institutional character and integrity.  In a society that respects and values diversity, as our does, we should protect and accommodate our distinctively religious institutions, and welcome their contributions to the common good. 

These lawsuits are not asking the courts to endorse the plaintiffs’ religious views, only to respect and accommodate them.  Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values.  In a pluralistic society, people will often disagree about values and policies, and it will not always be possible to accommodate those who object in good faith to regulatory requirements.  At the same time, a society like ours – with a Constitution and federal religious-freedom protections like ours – will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case.  We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law.  True, there will sometimes be tension and conflict, and trade-offs and compromises.  Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.