Mirror of Justice

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Friday, September 12, 2014

Amicus Brief of Pro-Life Organizations Supporting Strong Protection for Pregnant Workers from Discrimination

(from Tom Berg:) I'm very pleased to tell others about an amicus curiae brief, filed in the U.S. Supreme Court yesterday by 23 pro-life organizations in Young v. United Parcel Service, an important case involving the Pregnancy Discrimination Act of 1978 (the PDA).  The brief, which supports the pregnant employee who filed suit against UPS, is by pro-life organizations from across the political spectrum, from Concerned Women for America and the Southern Baptists to Feminists for Nonviolent Choices and Democrats for Life.  Here are a couple of news releases, from St. Thomas Law and from the Democrats for Life (on whose board I sit), each summarizing the case (and also linking to the brief).

The filing of the brief makes important statements that, I think, are noteworthy in our society polarized over the “life” issue and how to address it.  In this, a variety of pro-life groups with different missions, who disagree on other things, have come together to emphasize that supporting pregnant women is a fundamentally pro-life position.  I suspect that, in our polarized atmosphere, some people may be surprised that a bunch of pro-life groups have filed to support working women—so spread the news!

I worked along with several other counsel, including my colleague Teresa Collett, to organize and draft the brief.  And yet another St. Thomas Law colleague, MOJ's own Lisa Schiltz, made important contributions to the brief as well.  (Go Tommies!)

The case involves Peggy Young, a driver for UPS who became pregnant and, based on the doctor’s note concerning lifting restrictions, sought to be switched to “light duty” work for the remaining few months of her pregnancy.  UPS had provided such an accommodation for several significant categories of employees, including those injured on the job, those with disabilities, and those who had lost their commercial driving license for various medical reasons—but it refused to accommodate Young.  She was forced to take an unpaid leave and lost her employer-provided health insurance for several months.  Young sued under the PDA, which requires that pregnant women be treated the same as other employees “similar in their ability or inability to work.”  Although UPS had made the accommodations mentioned above, the lower courts ruled against Young because there were other categories of employees UPS had not accommodated (e.g. off-the-job injuries); essentially, the court said that pregnancy was not discriminated against if it was treated no worse than those and was not ”singled out” for denial.  Young is seeking reversal in the Supreme Court.

The case raises an important issue concerning the effectiveness of the PDA’s protection for pregnant employees, since many employers make accommodations for some but not all employees with physical limitations.  The pro-life organizations’ brief argues that pregnancy should be treated as well as conditions the employer deems important enough to accommodate, not as poorly as conditions the employer refuses to accommodate.  The brief points to the background of the PDA, which had support in 1978 from pro-life groups and pro-life members of Congress.  Their rationale was that protecting pregnant women from discrimination reduced pressure on economically vulnerable women to abort their children, and strengthens the fundamental right to bear children and raise a family.  The brief makes those arguments as well.

Counsel of record are Carrie Severino and Jonathan Keim of the Judicial Education Project (also an amicus).

Cross-posted (with minor changes) at Whole Life Democrat

September 12, 2014 in Berg, Thomas | Permalink

Tuesday, July 29, 2014

Frum on Ryan's Anti-Poverty Proposal in a Time of "Pervasive Economic Insecurity"

David Frum, the at The Atlantic, joins others in welcoming Paul Ryan's anti-poverty proposals as an important step in returning Republican political leaders to serious discussion about how to deal with poverty. But Frum thinks the compassionate conservatism of the early Bush II years--which Ryan's proposal so far largely resurrects--won't be adequate for today's "more difficult [economic] circumstances," in which long-lasting unemployment is less attributable to bad personal decisions and social environments than it was, and more attributable to broad structural features of the economy:

In 1999-2000, it seemed realistic to draw a sharp line of distinction between the vast majority of adults willing and able to work full-time—and thereby earn a living somewhere north of the poverty line—and the small minority of adults whose bad choices or bad situation rendered them dependent on public assistance. But for half a decade now, that distinction has looked blurry. The specific problem of poverty among those who don’t work full-time is no longer so easily separated from the broader problem of pervasive economic insecurity among those who do.

Frum makes several suggestions, in the vein of Douthat/Salaam "reform conservatism," for how conservatives can compete in the upcoming policy debates. (Among other things, support the earned income tax credit and mother's allowances; oppose minimum-wage raises, universal pre-K education, and immigration reforms that would keep the market for labor soft.)

July 29, 2014 in Berg, Thomas | Permalink

Saturday, July 26, 2014

One Response to Michael about Blaine Amendments

Michael, you raise a good question about whether Blaine Amendments might be a "blessing in disguise" because they--albeit "unintentionally"--"shield many primary and secondary schools" from the choice to "capitulate to the secular orthodoxy or ween yourself from the government teat."

These are hard questions for schools. In a paper for a conference in Rome a few years ago, I presented various considerations, including the possibility that "withholding state financing to religious schools can affect their integrity and vitality as much or more as providing funds with conditions and controls attached":

When religious schools are denied financing while state [and secular private] schools receive it, parents face powerful financial disincentives against choosing religious schools for their children. To overcome that disadvantage, religious schools may have to change their programs to attract more donations, more applications, or more full-tuition-paying students instead of low-income students—all of which may compromise the school’s mission to teach the faith or educate the poor. Or schools may have to close altogether. Early in 2009, American newspapers reported that four Catholic secondary schools in New York City had been forced by fiscal necessity to join the state system as so-called charter schools. The change would permit them to receive funds but would require them to eliminate their religious components entirely, not just in selected classes as Supreme Court decisions like Lemon had required.

So I have a few reactions to your question:

1. To preserve their ability to choose their mission, Catholics and other religious groups should certainly try to increase their schools' financial independence so they are less exposed to the difficult choice of taking aid with strings or losing equal aid.

2. Nevertheless, whether the schools' integrity and vitality will be more threatened by taking aid or losing it depends on the situation, and on the kind of strings. Therefore, parents and schools should have the choice, even if the state has structured it as less than ideal. Blaine Amendments wrongly take the choice away from them.

3. If the societal opposition to Catholic or other religious doctrines and policies is so strong, it may not stop at putting strings on funding. Catholic and evangelical schools that violate antidiscrimination norms may face damages awards and fines even if they don't receive funding. Catholic schools have to figure out how to respond to that problem, entirely apart from Blaine Amendments.

(This sets aside, of course, the argument that secular regulation, such as nondiscrimination law, may sometimes actually push a school toward a better position even under Catholic teaching properly understood--the discrimination may be "unjust." But obviously how to understand Catholic teaching is for the school and religious leaders to decide, not the state.)

July 26, 2014 in Berg, Thomas | Permalink

Winters on Paul Ryan's Anti-Poverty Proposal

Michael Sean Winters has an excellent post welcoming Paul Ryan's proposal as a potential return by Republicans to serious discussions about how to assist and empower the poor. Michael Sean closes

by recalling the talk delivered by Bishop Robert McElory at John Carr’s Initiative on Catholic Social Thought in Public Life at Georgetown, in which +McElroy called for Catholics to become “insurgents” within their own parties. Ryan did that yesterday. I think he has further to go: I do not see how anyone committed to Catholic social teaching can fail to see the need to raise the minimum wage, for example. But, Ryan deserves great praise for taking on the issue and for putting forward ideas and for inviting criticism and continued debate. ... Shame on all of us if we do not seize this moment to remind the American Christian community that Matthew 25 says nothing about a rising middle class, and that we welcome anyone, but most especially Cong. Ryan, to the discussion our nation has for too long avoided: How do we continue the fight against poverty in ways that will actually help the poor?

July 26, 2014 in Berg, Thomas | Permalink

Friday, July 25, 2014

Dinesh D'Souza and "Playing Notre Dame"

This Atlantic article, "Whatever Happened to Dinesh D'Souza?," is an interesting account of how D'Souza went from writing seriously intended (if debatable) conservative books on multiculturalism, education, and politics to peddling s--t about Obama's Kenyan "rage" against  America. The thesis is that D'Souza decided that trying to persuade thoughtful people on the other side wasn't worth it (didn't sell books etc.), and just started preaching to the choir. Something that could certainly be said about many smart people today, left and right,  who write stuff far below their brainpower. 

But here are my favorite sentences in the article:

Yet failing to take on the best arguments of the other side—“to play Notre Dame” in the words of Charlie Peters, editor emeritus of Washington Monthly—carries risks. D’Souza’s subsequent books and films testify to the intellectual pitfalls of ignoring the critics. His demonization of President Obama is a case in point.

They're my favorite, of course, because of the "play Notre Dame" metaphor. (Here's another example of it.) If Protestant/secular quarterbacks/intellectuals are going to take on the best on the other side, they have to mix it up with the fighting Irish. Let's remember, however, how many other Catholic schools have serious Catholic intellectuals (especially in the law schools, of course!), and also serious sports traditions--whether it's St. John's and Villanova basketball, or St. Thomas's potency across the big Division III sports.

July 25, 2014 in Berg, Thomas | Permalink

Thursday, July 24, 2014

"Intellectual Property and Religious Thought" Papers and Foreword

The papers from the St. Thomas Law symposium on "Intellectual Property and Religious Thought" have been published.  I'm confident they'll be a great resource for future reflection on this now-vital subject.  My foreword to the symposium is available on SSRN.  All of the papers are available here.  Some of the papers are also on SSRN (see this earlier post).  Here's a taste from the abstract to my foreword:

The time is ripe for wider exploration about how religious themes, practices, and communities may inform IP law and policy....

This foreword summarizes the symposium papers, which fall into three categories: "God, Ownership, and Intellectual Creation"; "Life Patents, Religion, and Social Justice"; and "IP, Religion, and Social Relationships/Obligations." Symposium contributors include IP legal scholars Margo Bagley, Shubha Ghosh, Roberta Kwall, Bashar Malkawi, Alina Ng, and David Opderbeck, and religion/ethics scholars Audrey Chapman, Marco Fioretti, Paul Griffiths, and Jeremy Stern.

The foreword concludes with brief reflections on future directions in research and practice. First, religious reflections on creativity and ownership should influence the practice of religious communities and individuals, quite apart from the content of civil law. Second, with respect to law and policy debates, religious thought may “root” themes such as social obligation, or the sense of creativity as a gift, “in a richer social imagination that gives them meaning and weight,” as David Opderbeck puts it. Finally, religion has particular relevance to issues concerning IP, trade, and development in the global South--partly because many developing nations are deeply religious, and partly because religious agencies do much of the on-the-ground humanitarian work on matters with IP ramifications such as health care and agriculture.

July 24, 2014 in Berg, Thomas | Permalink

Sunday, July 20, 2014

How the Turn Against Religious Exemptions Will Likely Set Back ENDA

In The Atlantic, Molly Ball describes how some advocates for gay rights fear that the intensifying opposition to religious exemptions among other proponents will push back the passage of the Employment Non-Discrimination Act, the major piece of gay-rights legislation in Congress. Legislation with protective accommodations remains an essential strategy for giving respect to both sides in a genuinely pluralistic society.

July 20, 2014 in Berg, Thomas | Permalink

Friday, July 18, 2014

Richard Land, "The Culture Warrior in Winter"

The National Journal profiles/interviews Richard Land, who was formerly head of the Southern Baptist ethics and policy shop in DC and a leader among social-conservative activists.  It's a very interesting exploration of Land's career and the uncertain future for conservative evangelicals in the social/political sphere.

July 18, 2014 in Berg, Thomas | Permalink

Monday, July 14, 2014

Robert Christian on Obama's Pro-Family Proposals

Robert Christian, of the Millennial blog and Democrats for Life, writes at Time of the President's policy proposals at the recent White House summit on working families:

The leaders and members of the Church are the perfect partners in this push for economic justice and stronger families. From supporting the Pregnant Workers Fairness Act to minimum wage increases to a paid family leave program, Catholics should take up the battle to provide American families with the flexibility, support and economic security they need to thrive in the 21st Century.

July 14, 2014 in Berg, Thomas | Permalink

Sunday, July 6, 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.

July 6, 2014 in Berg, Thomas | Permalink