Wednesday, April 5, 2017
Here is a link to Sen. Kaine's op-ed in which he contends that Judge Gorsuch, if confirmed to the Supreme Court, "jeopardizes women's rights." As we were told often, during the campaign, Sen. Kaine is a practicing, educated, well formed Catholic, and so it is surprising and disappointing that he would, in his piece, present the very idea of "complicity" as if it were something exotic or troubling. Put aside disagreements about the Court's application of the RFRA in Hobby Lobby and put aside also questions one might have about the religious objections raised in that case or in the Little Sisters litigation. Kaine writes:
"All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others."
"The wrongdoing of others"? Who are these "others," and what did they do wrong? They are the women who work for Hobby Lobby, and their "wrongdoing" was their desire to make their own choices about using contraception.
Moral questions of complicity in others' behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner's beliefs about contraception conflicted with the ACA. So Judge Gorsuch's decision to inject his own editorial comment about women's "wrongdoing" was an insulting characterization of a personal choice protected by the law. His two uses of the phrase "all of us" also suggest that he was making a point far broader than what the parties to the case had presented to him.
But, of course "[m]oral questions of complicity in others' behavior had . . . to do with the legal question in this case." The entire point of both sets of cases was that the RFRA claimants objected, for reasons they described as religiously-informed moral reasons, to being required by the coverage mandate to be complicit in what they regarded as wrong. (Indeed, probably the leading -- even if, to me, unconvincing -- academic criticism of Hobby Lobby focuses precisely on the dangers the authors see in incorporating "complicity" into religious-freedom law.) I understand, certainly, that Sen. Kaine (and, probably, most people) do not think that, in fact, the conduct in question is "wrongdoing" but that "ha[s] nothing to do with the legal question in [the] case[s]." (This response by Kaine to a fact-checker reflects a similar mistake.)