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January 18, 2013

A response to Kaveny's response to Winters' response to Kaveny

The title of this post sounds, I know, like a parody of a blog-post title.  That said, there's an interesting and important conversation / debate going on, between Michael Sean Winters and Cathy Kaveny, about law, religious freedom, and the HHS mandate.

Here is Kaveny's recent Commonweal column. Here is Winters' response to it, at Distinctly Catholic.  And, as Michael Perry mentions below, here are the first two parts of Kaveny's four-part response (!) to Winters.  Finally, here is a short post I did, the other day, regarding Kaveny's column.

The primary point of Kaveny's column, as I understand it, and also of "Part 1" of her response to Winters, is that "defining exemptions is not defining religion."  (As she notes, one of the arguments often made against the mandate is that it does define religion, and that it does so too narrowly, in a way that wrongly confines religion and religious faith to houses of worship and to institutions that hire and serve co-religionists.)  Now, it is true that, in fact, the mandate does not "define religion", in the sense that an anthropologist, theologian, or religious-studies scholar might do.  (Indeed, such a scholar might say -- see, e.g., William Cavanaugh, The Myth of Religious Violence -- that the very idea or category of "religion" is more slippery than contemporary law-and-policy debates appreciate.)  But, I'm not sure this really gets to (what is for me, anyway) the objection.

Yes, as I said in my earlier post, what religious-exemptions legal provisions (or other religion-touching provisions) are doing is not so much "defining religion" as employing various criteria to identify that which the relevant provision will treat, for purposes of the relevant regulation, as exempt.  Still, the "defining exemptions is not defining religion" point is too quick, because it overlooks, I think, the fact that the exemptions in question exist for the purpose of honoring religious freedom.  RFRA requires, in many instances, exemptions because RFRA has as its purpose the goal of respecting and protecting religion and religious freedom.  So, the criteria that are used to identify that which is exempt are criteria that reflect the government's understanding of what religious freedom is and demands, of why religious freedom and religion are good, valuable, and to-be-respected.  The criteria employed in "defining exemptions" tells us something -- they reflect premises -- about religion.  And, if one starts from some premises about religion and religious freedom one will end up with different exemptions-criteria than if one starts from others.  The criticism of the mandate, and of the administration, is that it started from the wrong premises (also reflected in its misguided -- extremist, actually -- brief in the Hosanna-Tabor case) about religious belief, religiously motivated activity, religious institutions and their role, etc., and that it therefore ended up with an overly narrow exemption -- and exemption that does not, in fact, do what (under RFRA) exemptions are supposed to do.

Kaveny also points out, correctly, that the mandate was not picked out of "thin air" but had, in fact, been "road tested" and upheld by some important state courts.  This is true.  In her view -- because "procedures" and "motives matter" (and they do) -- this fact cuts against the narrative that the HHS mandate reflects an insensitivity (or worse)  to religious freedom.  As I see it, though, the fact that the administration selected, from among a variety of alternatives, an unusually ungenerous exemption, notwithstanding the fact that the administration was on notice (through the notice-and-comment process) that a variety of religious groups strongly objected to that exemption, and without considering (as Sec. Sebelius admitted publicly) with care whether the exemption would satisfy the Religious Freedom Restoration Act's demanding requirements, suggests that the mandate was chosen not simply because it had been upheld in California, but because it seemed consistent with the decision-makers' (unsound) premises about the place, value, and rights of religious institutions.  

In Part 2 of Kaveny's response -- addressing the (promised) "accommodation" -- she evaluates the (proposed new) exemption, and asks:

In order to answer this question, we have to recognize that claims of religious liberty are never treated as absolute. The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: “The mandate interferes with religious liberty…and it doesn’t serve a compelling state interest because it harms women and children, so it should be struck down.” That’s a no-go. The church can’t put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law.

It is true that an interest is not rendered non-compelling, for purposes of applying RFRA, simply because the interest does not cohere with the Church's teachings.  It is also true, though, that the government's characterization of an interest as "compelling" does not end the matter.  In constitutional litigation, courts scrutinize regularly and closely -- in cases where regulations burden fundamental rights -- the government's asserted interests to be sure (i) the stated interest really is the interest, and not just a cloak for something else; (ii) the stated interest really is weighty (and permissible); and (iii) the stated interest is being pursued in a way that burdens the fundamental right at issue as little as possible.  Those of us who object to the mandate contend (among other things) that (a) the government's willingness to exempt a great many employers from the HHS mandate altogether undermines its claim that the interest is so compelling as to justify this burden on religious employers and (b) because less burdensome ways of pursuing the interest in question are available, they are therefore required by RFRA.  The existence of RFRA, which commits the government to an accommodationist approach, rules out the argument that the mandate is the most convenient way of pursuing its interest.

I look forward to the next two installments!

Posted by Rick Garnett on January 18, 2013 at 10:22 AM in Garnett, Rick | Permalink

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The strict scrutiny test does not defer to the government on compelling interest, and it very much makes the merits of the law fair game. Prof. Kaveny isn't talking about strict scrutiny, she is talking about Lee, whose scrutiny level was not called "compelling" and which cannot plausibly be compared with real strict scrutiny prescribed by RFRA and O Centro Espirita.

Posted by: Matt Bowman | Jan 18, 2013 3:27:20 PM

Professor Garnett, your argument that "the government's willingness to exempt a great many employers from the HHS mandate altogether undermines its claim that the interest is so compelling as to justify this burden on religious employers" is a valid one as is your argument that "because less burdensome ways of pursuing the interest in question are available, they are therefore required by RFRA". I am wondering if you believe the ruling in Hosanna-Tabor, because it precludes the Government from defining ministerial, precludes the Government from defining who is and is not exempt from the contraception mandate, and thus there should not be a contraception "mandate", to begin with?

Posted by: N.D. | Jan 19, 2013 3:53:36 PM

Hosanna-Tabor does not bar government, or courts anyway, from defining "ministerial."

Posted by: Paul Horwitz | Jan 20, 2013 12:52:48 PM

According to Hosanna-Tabor, a religious group has "a right to shape it's own faith and mission" thus it would follow that the Government is precluded from reshaping a religious group's faith and mission.

Posted by: N.D. | Jan 20, 2013 5:37:05 PM

Nevertheless, I assure you the decision does not preclude any legal, or legally imposed, limits on who constitutes a ministerial employee.

Posted by: Paul Horwitz | Jan 20, 2013 8:10:30 PM

Nevertheless, Religious Liberty, does not depend on whether a human individual is a minister or not, although all Catholics are, in fact, members of The Royal Priesthood, and thus serve as ministers of our Catholic Faith.

Posted by: N.D. | Jan 20, 2013 9:16:12 PM

Recent presidential proclamation:

http://www.gpo.gov/fdsys/pkg/FR-2013-01-22/pdf/2013-01267.pdf

Posted by: Anon | Jan 22, 2013 8:11:08 AM

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