July 12, 2014

Tragedy and Irony: Constitutional System, Political Suasion, and History

Here's another one for the Berg-DeGirolami exchange on the subject. For previous entries, see this, this, this, and this from my buddy Tom, and this and this from me. This post focuses on matters of constitutional system, political suasion, and my own appeal to history. 

But before getting to that, I want to address the much less central attitudinal or dispositional point about clever detachment. Tom's interlocutor interprets the passage I quoted from Shaffer in a very creative and appealing way, and Tom also notes that the ironic disposition can be turned inward as well. I don't wish to contest any of these points. I am not a Niebuhr scholar, and these are elegant defenses against my criticism. I guess the reason for my criticism is that I thought it was an important part of the ironic approach to point out to others that that their viewpoints and outlooks are partial and often incapable of seeing what's really true, that they have missed some self-deflating hypocrisy in their own position, and that if they only saw the missing piece, they'd be much more reasonable and would probably alter their views on some deeply held matter. If I have stated this view correctly (Tom, please tell me if not), whatever its merits, this is different than a tragic approach, which begins with the presumption that differences of opinion on deep questions among contestants really are what the contestants say they are, and then goes about explaining why they are so intractable. But I am happy to accept the rejoinder that tragedians can exhibit their own sins. Almost certainly one of these is a too-quick-and-easy pessimistic retreat. 

Onto more substantive matters.

1. Constitutional System: the Abstract and the Particular.

You say that you doubt that a tragic approach reflects "our constitutional system." The reason is that there is a shared, core consensus about certain basics of constitutional rights. Of my skepticism about deep, shared attachments, you write: "The same things could be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other side's ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise?" 

It is instructive (and sad, at least to me) that you must move so quickly away from religious freedom and to the freedom of speech. That move suggests that perhaps the ambit of tragedy is expanding, as the common core that you reference inexorably diminishes seemingly by the year. And for the first time at least since I have been writing (not a long time, I admit!), I am seeing serious arguments made by serious scholars who are contesting the core values of the freedom of speech as well. In a very few years, I would not be surprised in the least to see that these arguments (like those about religious freedom) have become more mainstream as well.

But I think I can agree with the basic point you are making, even as to religious freedom, if phrased in something like this way (I make the fuller argument in Chapter 4 of my book): It is quite possible to decide whether a certain set of values corresponding to a constitutional right (like the freedom of speech) is good in the abstract, without being able to decide in advance whether it is powerful enough in a specific situation to defeat another conflicting value. But it is only in the value's embodiment in a particular, real-world struggle that we can make judgments about how strong it really is. Take values like equality, law-abidingness, autonomy, the authority of conscience, liberty, and tolerance.

Continue reading "Tragedy and Irony: Constitutional System, Political Suasion, and History"

Posted by Marc DeGirolami on July 12, 2014 at 12:19 PM in DeGirolami, Marc | Permalink

July 11, 2014

A troubling development

The Boston Business Journal reports that Gordon Collegem a "Christian college on the North Shore[,] faces scrutiny from the body that accredits colleges and universities in New England."  This "scrutiny" is a result, according to the report, of the fact that "Gordon College President D. Michael Lindsay thrust the college into the spotlight a week ago by signing a letter to President Barack Obama requesting that he exclude religious institutions from an executive order barring organizations that take federal money from discrimination in hiring based on sexual orientation."

Why might this be, as I suggest, troubling?  Because, as this post describes, "the federal government relies on accrediting agencies to decide which colleges qualify for the $157 billion of federal funding provided annually to colleges and universities[.]"  Those who care about institutional pluralism and diversity should be concerned that a college President's request that a coming policy change take account of religious freedom results in such a not-so-subtle threat of punishment.

Posted by Rick Garnett on July 11, 2014 at 02:23 PM in Garnett, Rick | Permalink

Please nominate MOJ for a spot in the Best 100 Legal Blogs

More info here.  I feel confident that nominations will be appropriately appreciated by Our Lady, Mirror of Justice! 

Posted by Rick Garnett on July 11, 2014 at 01:07 PM in Garnett, Rick | Permalink

July 10, 2014

Quote of the Day: Government and Love of Neighbor

The government cannot love a neighbor, and that is why it has failed to solve the problem of poverty. Todd_Rokita,_Official_Portrait,_112th_Congress

Rep. Todd Rokita of Indiana (full post here).


Posted by Greg Sisk on July 10, 2014 at 04:07 PM | Permalink

The Connection of Separationism and Radically Limited Government

In rereading a wonderful piece by Professor Michael McConnell about Edmund Burke’s view of the relationship between an established religion and a regime of toleration of religion, I came across this deeply insightful discussion of the close connection of a separationist idea of religion and government (as envisioned by Thomas Jefferson, for example) and the idea that government itself had very limited functions in the first place:

There is a close, but generally unrecognized, connection between the idea of the “Wall of Separation” and the idea of a radically limited government. Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the “Wall” and entered the traditional sphere of religion. In contrast to many of our Founders, Burke had a more modern conception of the jurisdiction of the state, which did not permit him the easy answer of a “Wall of Separation.” If the government is “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection,” then it necessarily will be conveying a collective teaching on science, art, virtue, and perfection (whether we label the teaching a “religion” or not). It follows not that an establishment is desirable, but that it is inescapable. Some sort of opinions will necessarily guide the state in its “superintending control over…the publicly propagated doctrines of men.” If the Jeffersonian-Madisonian ideal of the limited state is abandoned as naive or outmoded, then the serious questions become how to protect against arbitrary or tyrannical use of this power and how to respect the legitimate rights of those who disagree with the official orthodoxy.

Michael W. McConnell, Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’ 1995 Supreme Court Review 393, 444-45 (with citations to Burke’s Reflections on the Revolution in France and his Speech on the Petition of the Unitarians).

Posted by Marc DeGirolami on July 10, 2014 at 02:22 PM in DeGirolami, Marc | Permalink

"Can Markets Make Citizens?"

This paper ("Can Markets Make Citizens?  School Vouchers, Political Tolerance, and Civic Engagement", appears in the latest Journal of School Choice and is well worth a read.  Here is the abstract:

School voucher programs challenge the traditional role of the public school as the builder of citizens, raising the question of whether private schools can provide a civic education of equal quality. In this study, we use survey data from the Milwaukee voucher program to investigate the relative benefits in civic outcomes of attending a voucher school. We find that voucher students demonstrate modestly higher levels of political tolerance, civic skills, future political participation, and volunteering when compared to public schools students. Further analyses indicate these results may be driven in part by those students attending Catholic and other religious schools.

Posted by Rick Garnett on July 10, 2014 at 12:55 PM in Garnett, Rick | Permalink


I'm not a soccer (or "football") fan, but I thought this was great:

Posted by Rick Garnett on July 10, 2014 at 09:47 AM in Garnett, Rick | Permalink

July 09, 2014

Excellent review of "Lost Classroom, Lost Community"

Education Next -- an important education-policy journal -- has published this excellent review of Lost Classroom, Lost Community:  Catholic Schools' Importance in Urban America, by Nicole Stelle Garnett and Margaret Brinig (buy it here!).  Nathan Glazer is the author of the review. Here is a taste:

The areas in which Catholic schools are closing are also areas in which overall population may be declining, black and minority population increasing, and poverty rising. Do these not explain the increase in crime and disorder and the decline of trust? The authors make the ingenious argument that they can detect the distinct influence of the closing of a Catholic school because such events are not related only to the increase of poverty and the growth of minority populations. Which schools in such areas close, they argue on the basis of detailed knowledge of how Catholic schools operate, depends on the commitment of the pastor of the parish. Those more committed to the school and parish will fight harder to enable them to remain open. And the authors argue they can measure commitment by a number of factors: how old the pastor is, how long he has served in the parish, whether he has been ordained in the archdiocese or belongs to a religious order and is subject to its authority, whether there is some irregularity—like a sexual abuse charge—involving the pastor, and whether a temporary administrator heads the parish. . . .

Posted by Rick Garnett on July 9, 2014 at 01:42 PM in Garnett, Rick | Permalink

Lyman Johnson on Hobby Lobby: A Landmark Corporate Law Decision

My colleague, Lyman Johnson, has a post today on Business Law Prof titled "Hobby Lobby, a Landmark Corporate Law Decision."  Herewith a sample: Johnsonlp

As one who for decades has favored a vision of corporations (and corporate law) as being utterly conducive to serving broad social purposes -- as freely determined, of course, by the appropriate corporate decisionmakers -- and as one who supported Hobby Lobby, I found it odd to see these companies opposed by so many corporate progressives. . . .

To those on the right who favored Hobby Lobby (me) but who also favor the now-discredited position that corporate law requires profit maximizing (not me) take note:  you won the battle on religious freedom but to do so you had to suffer a major setback on corporate purpose.


Posted by Greg Sisk on July 9, 2014 at 12:51 PM in Sisk, Greg | Permalink

July 08, 2014

A response to Kaveny on the Hobby Lobby case

Cathy Kaveny has an essay in Commonweal called "A Minefield" which discusses the Court's recent Hobby Lobby decision.  I agree with Cathy that "in a pluralistic society, the religious freedom of one party needs to be balanced against the rights and the legitimate expectations of others."  (It seems to me that both RFRA and Dignitatis Humanae say as much.)  I also agree with her that RFRA-type accommodation regimes tend to invite a very difficult (and, even after Hobby Lobby, not resolved) question, i.e., how should a court determine whether a claimant's sincerely held religious belief is burdened and whether that burden is, for legal purposes, "substantial"?  

In several places, though, I disagree with the essay. . . .

Continue reading "A response to Kaveny on the Hobby Lobby case"

Posted by Rick Garnett on July 8, 2014 at 02:40 PM in Garnett, Rick | Permalink

Religious Freedom, Accommodation, and Establishment

I did a short article for the Vanderbilt Law Review's "En Banc" journal, called "Accommodation, Establishment, and Religious Freedom."  Here is the link.  And, here is the abstract:

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an aspect of the public good, it is both appropriate and unremarkable that, sometimes, maintaining the conditions for religious freedom is not cost-free.

Fred Gedicks and Andy Koppelman respond to what they kindly call my "thoughtful and measured" arguments here.

Posted by Rick Garnett on July 8, 2014 at 09:03 AM in Garnett, Rick | Permalink

July 07, 2014

The Pendulum Swings: Substantial Majority Opposes Big-Government Solutions

As I blogged back in April (here), the centuries-old American debate about the right size and proper role of government will carry forward for decades into the future, despite occasional nonsense from pundits that this or that political win for this or that set of politicians means that this or that side of the political spectrum would be forever banished into the political wilderness.

Those of us on the Mirror of Justice who are motivated in our public activities by faith and who share a Catholic understanding of the human person in community vary greatly on our evaluation of the wisdom of and the acceptable extent to central government programs to advance the common good.  So too the general American public remains divided and insists on preventing one or the other viewpoint from dominating the political landscape for too long.

Pendulum2When President Obama was first elected in 2008, together with large Democratic majorities in both houses of Congress, many believed the stage was set for a new progressive era as conservative views about limited government receded into the past.  But, as shown by the 2010 congressional elections and President Obama's thin 51-percent reelection, the charisma of liberty and skepticism about the competence (and moral legitimacy) of government mandates has sent the pendulum swinging hard to the other side yet again.  As Marc Theissen writes in today's Washington Post:

"According to a December Gallup poll, the number of people who say that 'big government' is the greatest threat to the country has risen from 55 percent when Obama took office to 72 percent today — the highest that number has ever been in 50 years of polling. For the next quarter century, whenever a liberal politician proposes some new, big-government program, all conservatives will have to say to discredit it is: 'It’s just another Obamacare.'”

Of course, as I suggested earlier, this too shall pass — although the clunky implementation of Obamacare will have lasting implications (for at least a couple of election cycles).  Even if Republicans win big this fall (and I'm still dubious that the huge shift of six Senate seats can be accomplished), and even if Republicans should take the White House again(an even bigger "if"), they too will make mistakes and overreach.  At some point in the future, the pendulum will sweep back in the other direction.

While the swing of the pendulum will never stop altogether, Catholic public thinkers might be able to escape the back-and-forth by looking for ways to transcend old political divisions and trying to find ways to more "smartly" join governmental policies and public environments with social and religious organizations to enhance human thriving.  By doing so, we may not only make the world (or at least our neighborhood) better but also strengthen the case once again for religious freedom and the plurality of initiatives that such freedom brings.

Posted by Greg Sisk on July 7, 2014 at 04:40 PM in Sisk, Greg | Permalink

"The Great Accreditation Farce"

In the current Chronicle, U Penn English prof Peter Conn offers a remarkably misguided essay on accreditation.  An excerpt:   

I want to raise [an] . . . important objection to accreditation as codified and practiced now. By awarding accreditation to religious colleges, the process confers legitimacy on institutions that systematically undermine the most fundamental purposes of higher education.

Skeptical and unfettered inquiry is the hallmark of American teaching and research. However, such inquiry cannot flourish—in many cases, cannot even survive—inside institutions that erect religious tests for truth. The contradiction is obvious.

Citing Wheaton College as an example, Conn notes that its faculty are required to affirm faith statements, and thus Wheaton "makes a mockery of whatever academic and intellectual standards the process of accreditation is supposed to uphold."

Where to begin?  Three quick points:

First, as Conn acknowledges, there is a (largely sensible) move to shift accreditation standards from being focused primarily on inputs to being focused more on outputs.  Categorically excluding certain institutions because of the commitments they bring to the education process takes higher ed in exactly the wrong direction.  The success of Wheaton grads (and grads of many other institutions that require statements of faith) speaks for itself.

Second, as most folks seem to have recognized at least ten years ago, there is a value to institutional pluralism -- even if all we care about is the role of faculty research in the pursuit of truth.  To take one of countless examples, would Mark Noll have flourished as a historian at the University of Illinois to the same extent that he flourished at Wheaton (and continues to flourish at Notre Dame)?

Third, many Christian colleges make their commitments explicit; many secular colleges do not.  Does weeding out the institutions that are explicit ensure that secular colleges cultivate environments in which totally "unfettered inquiry" can and will proceed?  If we throw out a certain category of institutional commitments, have we effectively closed off certain paths of inquiry?

Should religious colleges be automatically entitled to accreditation?  Of course not.  Neither should secular colleges.  The focus for both should be on the fruits of their labors, not on the reasons they labor in the first place.

Posted by Rob Vischer on July 7, 2014 at 02:58 PM in Vischer, Rob | Permalink

Anderson on the "Right to Be Wrong" and Hadley Arkes

This piece, by Ryan Anderson ("The Right to Be Wrong") is definitely worth a read.  He is, among other things, responding to an argument that Hadley Arkes pressed in First Things and elsewhere to the effect that religious-liberty advocates (e.g., the lawyers representing entities challenging the contraception-coverage mandate under RFRA) are wrongly presuming/arguing that religious liberty is about "belief" and that there is a "right" to act in accord with religious beliefs even if those beliefs are wrong.  (Ryan's title is taken from Seamus Hasson's book, The Right To Be Wrong, which I reviewed several years ago here.)  A number of other commentators -- some have called them Catholic "anti-liberals" -- have made arguments like Hadley's, and I hope they will read Ryan's response.  At the very least, it would be a good thing if those pressing the critique that Arkes has been pressing would distinguish between (a) philosophical and theological arguments about the Truth of the Matter and (b) the arguments that are made, and appropriately made, given the givens about the current positive-law landscape, in order to secure the space necessary for religious freedom, correctly understood, to be execised. 

Posted by Rick Garnett on July 7, 2014 at 10:48 AM in Garnett, Rick | Permalink

July 06, 2014

Fr. Snyder from Catholic Charities USA to St. Thomas

The Rev. Larry Snyder, president of Catholic Charities USA since 2005, is returning to the University of St. Thomas (one of his alma maters) to serve as vice president for mission.  This is great news for the university.  He has done admirable work at Catholic Charities, and he's contributed valuable insights (e.g. here) on how law and policy can help facilitate, and partner with, faith-based and other community organizations to serve and empower those in need.

Posted by Thomas Berg on July 6, 2014 at 03:33 PM in Berg, Thomas | Permalink

Originalist Fusionism

Soon I will return to spar a bit with Tom about irony and the barbarian hordes in the thoughtful middle.

But first, here's something for the originalism debates. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.

Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim--i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project--bringing together considerations of original meaning and original intent as both relevant.

Exhibit A: Donald Drakeman's and Joel Alicea's work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings?  The authors discuss a case from 1796 -- Hylton v. United States -- which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax's constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and "what to do when the best evidence of contemporary usage points in two directions."  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources -- dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the "foreign Lexicons" of "consolidated" as opposed to "confederated" governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith's definition of a tax in The Wealth of Nations "was probably contemplated . . . by [the] Convention."  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers' intentions.  The reason for this focus is best summarized by Justice Paterson: "the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain."  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: "when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question 'What were the framers actually trying to accomplish in using this language?' rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?" And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.

Exhibit B: Steve Smith's new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism's complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes: 

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.

Smith suggests at the end of the piece that it might be good for "some new movement to emerge devoted to the true criterion for constitutional interpretation," and he refers to an unpublished paper of his dealing with a "maker-meaning nexus." I haven't read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.

I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins's writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.

Posted by Marc DeGirolami on July 6, 2014 at 10:20 AM in DeGirolami, Marc | Permalink

Douthat on Religious Liberty and the Social Contributions of Religious Organizations

Ross Douthat in the NY Times observes that the Hobby Lobby owners' corporate conscience has led to some good things for workers, including  a high minimum full-time wage and Sundays off. (Wait: why does Hobby Lobby get to impose its Christian beliefs on its customers who might have a need to do their shopping on Sundays?) Of course, there's a quarrel over how consistently socially responsible Hobby Lobby is. But as Douthat says, "this isn’t just a point about the company’s particular virtues"; most of it is about religious organizations that serve those in need:

The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.

Most of the commenters, unsurprisingly, are having none of it. But, as always ... it's the open-minded middle you have to reach. Not Times commenters.

The religious organizations that reach out beyond their church's members--and as a result are increasingly threatened with regulation conflicting with their beliefs--want "freedom to serve," in the words of the Catholic bishops' religious-freedom fortnight that just ended. Yes, there are tough issues about ensuring full participation of GLBT people, women, and others in society. But the resolution of those issues has to make room for full participation of faith-based service organizations as well.

An excerpt from my own work on "progressive arguments for religious organizational freedom," which fleshes out the same argument with supporting evidence (footnotes omitted):

[I]t is ironic and mistaken for progressives to deny or minimize religious-freedom protection for faith-based service organizations, as the original HHS exemption did. Works of justice, mercy, and service lie at the core of many religious faiths, but especially those that describe themselves as “progressive.” These works also rank among the features that progressives, religious or not, value most in religious organizations.

Continue reading "Douthat on Religious Liberty and the Social Contributions of Religious Organizations"

Posted by Thomas Berg on July 6, 2014 at 12:32 AM in Berg, Thomas | Permalink

July 03, 2014

Hobby Lobby and the Apocalypse

I have a not-too-long spot on NPR's Morning Edition from today, partially making the case that Hobby Lobby will not bring about radical consequences.  On the other hand, Seth Rogen, an expert on apocalypses, thinks it will.

Posted by Thomas Berg on July 3, 2014 at 05:34 PM in Berg, Thomas | Permalink

State Law Contraception Mandates and Post-Hobby Lobby Federalism

Susan is correct, of course, that several states (26 by statute and two by administrative ruling according to this from the NCSL; see also this summary from the Guttmacher Institute) require that employers include contraception in prescription drug benefit plans. While some include broad religious exemptions (eg, Texas), others provide no exemption at all (eg, Iowa) or, as in California and NY, an exemption limited in the same terms as the HHS mandate (which I wrote about a couple years ago here). There are ways around such state-law mandates, however, most notably in some circumstances through self-insurance, and part of the impetus for the HHS mandate under the ACA was to require coverage in all employer-provided plans (other than the diminishing grandfathered few or those entitled to the religious exemption) as well as those in the 22 states without a state-law mandate.

Because RFRA does not apply to the states under Boerne, challenges to state law mandates have to rely directly on the Free Exercise Clause of the First Amendment (with little chance of success, of course), state constitutional free exercise clauses, or state RFRAs. Such challenges--including the challenge (cert petition here) I was part of as an associate at Williams & Connolly ten years ago to the California mandate--have been unsuccessful. (One issue from that petititon that I think has never been fully explored is whether the carving up of what is a sufficiently "religious" institution to qualify for for an exemption poses Larson v. Valente Establishment Clause problems, but that has garnered about as much interest from courts as the argument on the other side that Caldor v. Thornton from the same era implies a broad rule that accommodations raise Establishment Clause problems.) Thus, the point made in this LA Times story that not much will change for many employees post-Hobby Lobby and the likely push in some of the remaining 22 states to enact contraceptive mandates.

Perhaps there are some important doctrinal Justice Kennedy-syle federalism-as-protecting-liberty reasons for this post-Hobby Lobby state of affairs (Howard Wasserman raises similar issues here), as well as an example of Rick Hills's "Westphalian" strategy of substituting conflicts over jurisdiction for conflicts over deeply contested moral questions. Justice Kennedy wrote the decision for the Court in Boerne holding that RFRA was not a congruent and proportional remedy for any state (or local government) religious free exercise violations of § 1 of the Fourteenth Amendment (a then much-criticized narrowing of Congress's § 5 power--times change). The federal government remains limited by RFRA in what it can impose on the nation by statute or regulation (see O Centro and Hobby Lobby). The states, however, can ratchet up or down levels of free exercise protection through interpretation of their state constitutional provisions, enacting state RFRAs, or crafting exemptions (or burdens, see Locke v. Davey), free from federal constitutional (see Smith, which Justice Kennedy joined) or statutory (see Boerne) demands.

Posted by Michael Moreland on July 3, 2014 at 03:43 PM in Moreland, Michael | Permalink

State Law Contraception Coverage Mandates

One thing I have not seen very much discussion of in the aftermath of the Supreme Court's decision in Hobby Lobby is the question of the continuing impace of state laws mandating contraception coverage. (This is a subject Michael Moreland and I and other have discussed here in the past.)

 More than half of the states have so-called "contraceptive equity" statutes.  Such statute are different from the ACA in that (1)  there is no direct mandate imposed on employers (because of ERISA, they take the fom of insurance regulation requiring that insurance cover contraception) and (2) they do not prohibit cost-sharing. While it is less dirct than the ACA mandate, such laws still have the effect of forcing employers with opposition to contraception to have plans that provide for them.  

The ACA mandate made those laws seem unimportant, but given the decision in Hobby Lobby, they may matter again.

Since the federal RFRA does not apply to states, in states that do not have their own version of RFRA, presumably such laws will continue to operate.  Although many such statutes have exemptions for religious employers, some of those are fairly restrictive.

Thoughts from Michael Moreland and others?

Posted by Susan Stabile on July 3, 2014 at 01:03 PM in Stabile, Susan | Permalink

Dr. Lindsay's Huff-Po and religion as an explanatory variable in religious accommodation cases

At first knowing of him only what I read in his piece, it came as something of a surprise to me to learn that the author of the Huff-Po* raising Hobby Lobby-based "concerns about the compatibility between being a Catholic and being a good citizen" has legal training. There is little legal argument and the piece describes as a "fiction" the quaint contention that the Court's application of a federal statute involved "upholding secular law." Yet Dr. Ronald Lindsay has not only a JD (from UVA), but also a PhD (from Georgetown). And he successfully practiced law for a long period of time.

Dr. Lindsay's full-time job now appears to be running an organization designed "[t]o oppose and supplant the mythological narratives of the past, and the dogmas of the present." As Dr. Lindsay has been carrying out this mission for a while, it is peculiar that he describes his loaded question ("Is it appropriate to have six Catholic justices on the Supreme Court?") as "uncomfortable." Surely this question is not uncomfortable for him. His Huff-Po is an organic outgrowth of the culture in which he lives; writing it fits in perfectly with his day job. Given Dr. Lindsay's background and knowledge, what is most uncomfortable is not his question, but his apparent uninterest in actually advancing and arguing for an explicit answer in his Huff-Po.

For whatever it's worth, as a descriptive matter, the Catholic Justices' Catholicism cannot be entirely irrelevant to how they rule. But the way in which Catholicism may or may not influence each Justice differs from person to person, and scholars of judicial behavior have generally not found it useful to use judicial religious identity as a variable in building their models. There are other, stronger influences that matter much more (like ideology).

Interestingly, Hobby Lobby may be one kind of case in which the religious identity of judges and of parties may be a useful explanatory variable, although not confirmed at the Supreme Court level. The most detailed empirical examinations of this issue that I am aware of are Greg Sisk's and Michael Heise's analyses of lower-court decisions. I believe their most recent paper (Greg can correct me if I'm wrong) is Ideology "All the Way Down"? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. 1201 (2012). That paper addresses Establishment Clause cases. An earlier paper with co-author Andrew Morriss addresses religious accommodation cases. See Gregory C. Sisk, Michael Heise, & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004). I am uncertain whether their analysis has been supplanted by later analyses, but here is a summary of their findings as of 2004:

The vitality of religious background to a more complete understanding of judicial decisionmaking is made abundantly clear by the findings of our study, at least for disputes involving the very topic of religion and the place of religion in public society. In our study, religion-based variables proved to be steady influences on judicial disposition of religious freedom claims, emerging as statistically significant across multiple models and independent of other background and political variables commonly used in empirical tests of judicial behavior. Indeed, religious affiliation variables—both those of judges and of claimants—were the most consistently significant influences on judicial votes in the religious freedom cases included in our study.   

In analysis of demands by religious claimants for exemption from governmental rules or regulations under the Free Exercise Clause of the First Amendment, together with related statutory, free speech, and equal protection claims, Jewish judges and judges from Christian denominations outside of the Catholic and Mainline Protestant traditions were significantly more likely to approve of such judicially-ordered accommodations, while free exercise claimants from Catholic and Baptist backgrounds were significantly less likely to succeed in pressing such claims. In evaluating judicial resolution of challenges to governmental interaction with religion under the Establishment Clause of the First Amendment, Jewish judges were significantly more likely to conclude that governmental interaction with religion breached the figurative wall of separation between church and state. In the particular context of education, Catholic judges were significantly more likely both to respond favorably to religious claimants seeking exemption from governmental rules or regulations (that is, more approving of Free Exercise Clause objections to government controls) and to resist challenges to governmental acknowledgment of religion or interaction with religious institutions (that is, less approving of Establishment Clause claims).

Shifting from a focus upon particular types of claims to analysis of four integrated theoretical models of the Religion Clauses of the Constitution—models that we christened Pro-Religion, Anti-Political, Judicial-Restraint, and Pro- Secularist—the steady influence of religion-based variables again emerged in our study. No significant variables were found among judges who adopted an approach toward the Free Exercise and Establishment Clauses that was most approving and accommodating of religion (the Pro-Religion Model) (although Catholic affiliation for judges closely approached significance). Nor did those judges who fit the antithetical model of insisting upon secularism in public life (the Pro-Secularist Model) fall into any significant patterns (again with the near and negative exception of Catholic judges). However, Jewish judges along with judges from non-mainstream Christian backgrounds were significantly more likely to approve of judicial intervention to overturn the decisions or actions of the political branch that either refused to accommodate religious dissenters or provided an official imprimatur upon a religious practice or symbol (the Anti-Political Model). Likewise, judges from these same religious backgrounds were significantly less likely to adopt a judicial restraint approach (the Judicial-Restraint Model), that is, these judges were less likely to defer to governmental actions that severely impacted religious minorities or that officially acknowledged religious traditions.


* A "Huff-Po" is kind of like an op-ed, but in partaking more of assertion than argument it exhibits one of the "characteristics of the larger intellectual/political culture of which the HP is an expression." 

Posted by Kevin C. Walsh on July 3, 2014 at 12:14 PM in Walsh, Kevin | Permalink

Dietrich von Hildebrand on "religious pluralism"

As we move forward following the Court's decision in Hobby Lobby, it's important to be clear about what we mean if we think, as many still do, that the answer to our day's social problems amounts to no more than a consensus that values pluralism.  Consider, by contrast, the judgment of Dietrich von Hildebrand (1889-1977), whom Ven. Pope Pius XII described as nothing less than "a 20th century doctor of the Church" (Pope Saint John Paul II and Pope Benedict XVI had similarly admiring things to say about von Hildebrand's work as a theologian):  

Insofar as cultures are concerned, multiplicity has a value, just as does the pluralism of national characters.  When, however, it comes to metaphysical or ethical truth -- and especially when it comes to religion -- any pluralism is an evil.  Evil, too, are the many fluctuations in the life of religion that occur in history.  Unlike cultural pluralism, religious pluralism is in no way a sign of life, but rather a symptom of human fraility and insufficiency.  Great metaphysical and ethical truths, and the true religion itself, are destined to take root among men.  Here the 'oughtness' of assuming social reality gives to their aliveness a special significance.  It represents a descending of Christ into the soul of the individual person and the erecting of His Kingdom in the interpersonal sphere.  It is the dimension of Christ's victory that He predicted in saying: 'Where two or three are gathered together in my name, I am in the midst of them.'  To supplant truth in its transcendent existence with a merely social reality is to imprison man and history in a desolate immanentism.  On the other hand, the incarnation of transcendent truth in man and history represents the victory of transcendence over the purely immanent.  

Trojan Horse in the City of God: The Catholic Crisis Explained 103-04 (1967; 1993).

John Cardinal O'Connor's Foreword to the 1993 edition of von Hildebrand's book adds the following:  "It is against secularism that von Hildebrand inveighs most strongly and consistently.  It is the invasion of secularism into the life of the Church that he sees as most analogous to the invasion of Troy by the Athenians.  'To be sure,' he says, 'secularization is an evil primarily because it implies an apostasy from Christ, and it is for this reason that we fight it on every page of this book'"  Id. at xi.  The late Cardinal O'Connor's Foreword concludes with these words about what the Church should be doing in every age:  "I hope that [readers] will take special note of Dietrich von Hildebrand's quoting John Henry Cardinal Newman about the Church: 'She holds that unless She can, in Her own way, do good to souls, it is no use Her doing anything.'"  Ibid.


By the way, von Hildebrand was sentenced to death (in absentia) by the Nazis for publishing a weekly opposition newspaper with the assistance of the great Austrian Chancellor Engelbert Dollfuss, who for his part was assassinated by the Nazis in 1934. 


Posted by Patrick Brennan on July 3, 2014 at 12:02 PM in Brennan, Patrick | Permalink

July 02, 2014

More Comments on Irony and Tragedy

Marc and I are engaged in a fun (for us, at least) dialogue about the "tragic" versus "ironic" approaches to religious liberty questions and probably other legal/social disputes too.  I've described the ironic approach, in the tradition of Niebuhr's The Irony of American History, as calling for humility and self-examination even in our most strenuous arguments against opponents, because our virtue can easily transmute into vice, while self-examination may make us see commonalities with, or virtue in, our opponents.  Marc, in turn, has defended the tragic approach laid out in his fine book, on the ground that it takes more seriously the often-unbridgeable gulfs between beliefs and ways of life that contend with each other.

Marc also argues that the ironic approach reflects a certain pretense of "knowing," a "clever detachment" that stands in judgment over the parties embroiled in the conflict.  On this last point, a friend of mine who's a student and fan of Niebuhr's work sent me some thoughts that laid out ideas I had only barely expressed in my response:

[T]he ironic disposition cannot be separated from the movement of repentance in Niebuhr's work -- that is, repentance is that movement in which the self transcends itself, its past, the causes to which it has pledged allegiance and see itself and this past and these commitments under the judgement of God. This is not clever detachment. Viewing itself and its past and its commitments under the judgment of God, it is enabled to see how virtuous intentions have gone astray as well as to discern the commonalities of sin between itself and its enemy. This emphasis on repentance is consistent throughout the two volumes of [Niebuhr's major work, The] Nature and Destiny [of Man].

Now, I'm sure that some people would be suspicous that when the self "transcends itself, its past, [and] the causes to which it has pledged allegiance," it is not actually "see[ing] itself ... under the judgment of God" but is instead asserting a kind of radical autonomy. Catholic theologians accused Niebuhr of favoring the autonomous self over the moral guidance of the Christian community.  I'm definitely not an experton these things, but I tend to see that criticism of Niebuhr as overstated.  However, let's set that debate aside.  The relevant point, which my friend expresses better than I had, is that in calling for self-examination and humility, the "ironic" thinker applies--should apply--the same demand to himself.  The kind of "ironic" disposition I'm describing, then, does not claim detachment--or intellectual or moral superiority, except insofar as moments of self-examination and repentance can lead to morally better behavior.

Along the same lines: Marc used an observation from Tom Shaffer to describe the ironic thinker's detachment and perceived superior insight.  My friend restates that quote and takes the analogy in an interesting direction:

"Shaffer [Marc wrote] once described irony as 'what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.' The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining."

The self in the ironic disposition is not an observer, but one of the two young lovers, who perhaps at a later date smiles wryly at a moment of innocence that was in actuality not quite so innocent as imagined at the time. As he has since discovered that, as a young man, he was still too young to know the full meaning of loving another human being.  T
he movement of repentance does not negate responsibility for the self's obligations. In so far as he reflects upon this past moment of innocence, he does so in order to gain a greater purchase on the meaning of love and the full meaning of loving another human being. Not to negate that obligation or to be an observer who stands outside of it. 

I'm piling on with the words here (sorry Marc!), but I thought that my friend's comments were worth sharing as part of the discussion.

I wonder if "irony," in our current circumstances, bespeaks too much of Letterman or Kimmel snark.  Is there a better term to refer to the disposition I've tried to describe?

Posted by Thomas Berg on July 2, 2014 at 11:58 PM in Berg, Thomas, Books | Permalink

Abortion: A "Jurisprudential Black Hole" Distorting the Law for Four Decades

In the separate concurrence in McCullen v. Coakley, Justice Scalia joined by Justices Kennedy and Thomas, wrote:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

As many commentators, both here on the Mirror of Justice and elsewhere have written, the political divide on the Hobby Lobby case illustrates what Paul Horwitz calls “the collapse of a national consensus on a key element of religious liberty: accommodation.”  Here too, abortion or “reproductive rights” have been central to creating that fault line between progressives and conservatives on religious liberty.

All of this can be traced back to the horrific error made in Roe v. Wade more than forty years ago.


In words parallel to the McCullen concurrence, I had this to say several years ago about Justice Blackmun’s jurisprudence:

Nor was the distorting effect of Justice Blackmun’s preoccupation with abortion and the Roe decision manifested only on the subject of the basis, definition, scope, and precedential preservation of the abortion right. As a jurisprudential black hole that drew in and deformed everything that came near its wandering path through spacetime, Roe’s gravitational pull collapsed Justice Blackmun’s approach to every area of law into a pro-abortion singularity including questions of standing to sue, standards of appellate review, and freedom of expression. Justice Blackmun decided every question on the periphery of the abortion controversy in the manner that most aggressively promoted ever-expanding abortion rights while simultaneously contracting the rights of those who protested abortion and the power of the states to restrain the abortion license.

Sadly, the reckless and destructive path of Roe v. Wade through the American legal landscape is likely to continue.

Posted by Greg Sisk on July 2, 2014 at 08:34 PM in Sisk, Greg | Permalink

"RFRA Worked in Hobby Lobby; What's Next?"

I have a piece on the Berkley Center's religious-freedom blog discussing Hobby Lobby's implications and the prospects for RFRAs in the future:

Finally, what will happen to RFRA and parallel religious freedom laws in 15 states? Already one hears calls for amending[*] the federal statute—although a White House source has disclaimed any interest in doing so, and the gridlocked Congress seems unlikely to act. Opponents may try to amend other federal laws to exclude RFRA from applying to them and to amend or even repeal RFRAs in blue states. Those attempts should be resisted. In an increasingly divided society, RFRAs provides a means for protecting dissenters from serious burdens while still allowing government to accomplish its important goals. The Hobby Lobby decision is controversial, but no less so than the decision to mandate contraceptive coverage in the first place. RFRA actually guided the Court toward a decision that can protect the interests of both sides. Let’s remember that in the coming months.

Other very worthwhile reads on the blog from Stanley Carlson-Thies, Kyle Duncan, Tom Farr, Jennifer Marshall, Steve Smith, and Chip Lupu and Bob Tuttle.


[* I fixed a typo here; the blog will be corrected when it refreshes tomorrow.]


Posted by Thomas Berg on July 2, 2014 at 07:24 PM in Berg, Thomas | Permalink