Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, July 12, 2016

IA Commission Walk-Back on Churches as Public Accommodations

Very quickly after being sued in federal court (the suit that Rick recently noted), the Iowa Civil Rights Commission revised its brochure on public-accommodations issues under anti-discrimination laws, to say that churches were not places of public accommodations (except in unusual cases). The new language:

Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.

Since there was a lot of publicity about the earlier language and the lawsuit, it's right, it seems to me, to note the change, and how quick it was.

July 12, 2016 in Berg, Thomas, Current Affairs | Permalink

Jim Gaffigan on Needing Mercy

Jim Gaffigan, the comedian, has been on talk shows recently as the second season of his great TV series has begun. NPR recently replayed and posted an interview he did last September with Teri Gross on "Fresh Air." A bit:

     [GAFFIGAN:] You know, I need the concept of mercy for me to have some semblance of self-admiration. So in real life, I'm probably somebody who is more devout. That's not to say that I'm a well-informed Catholic. You know, I'm still in idiot, you know? Like, I know that Colbert could quote Thomas Aquinas and all this, but I'm somebody who - you know, because it's a necessity for me on a personal basis. I need it because I'm a lunatic.

     GROSS: When you say you're a horrible person and a lunatic, what do you mean?

     GAFFIGAN: I mean that I'm somebody that - you know, I think stand-up comedy is this - it's this kind of indulgence and narcissism. And you're on stage and because stand-up comedy is one of the few meritocracies in the entertainment industry, there's some kind of - at least for me, there's some kind of idea of control. And my faith kind of keeps me in touch with the idea that I'm not in control of things. And when I'm in touch with the idea that there is a higher power and that there is, you know, other factors at work, it - it kind of quells my narcissism. And a lot of the teachings really kind of keep me grounded. But, you know, the reason I say I'm a horrible person is I don't want myself to be presented as somebody who's a great Catholic. You know, it's, you know - the idea of being a practicing Catholic, it's - for me, it's like - I need a lot of practice, you know what I mean?

When he said basically the same thing on Bill Maher's show (this clip, start around 2:00), Bill responded, "Why do you take on yourself more burden than life gives you anyway?" (I.e. "why go around thinking that you sin?"). It was a perfect skirmish between the theistic imagination and what Reinhold Niebuhr called "The Easy Conscience of Modern [Secular] Man." I think Bill Maher is often very funny, but watching his show, it's not clear he thinks he's ever gotten anything really wrong.

July 12, 2016 in Berg, Thomas, Television | Permalink

Christian Science Monitor Series on Religious Liberty

The Christian Science Monitor began a seven-part series today on "How the push for gay rights is reshaping religious liberty in America." A central theme of the first article:

     In their campaign for equal rights in America, gay men and lesbians have argued persuasively that they are being targeted simply because of who they are – and who they love.

     Many religious conservatives are now making a similar appeal. They argue that their faith is an essential part of their being, and that attempts to belittle their faith or confine it to the four walls of a church is to consign them to second-class citizenship.

The piece quotes John Inazu and me among others. One of my quotes continues the theme of seeing parallels between the two sets of claims, gay rights and religious freedom:

“Just as it was unsympathetic to gay and lesbian couples to say, ‘Keep your relationship totally private,’ it is also highly unsympathetic to the religious believer to say, ‘You have a legal right to follow your belief in church but no right in any other realm of life, like charitable organizations or the workplace.’”

As veteran MOJ readers know, I've elaborated on the case for protecting both sides here and (joining with Doug Laycock) here.

The whole series should be worth reading. The Monitor has devoted the resources to examining these issues in detail as the New York Times has done, but the first installment suggests it will present the religious-accommodation side more fairly than the Times did.

July 12, 2016 in Berg, Thomas, Current Affairs | Permalink

Sunday, July 10, 2016

The California Bill and Its Likely Impact on Religious Colleges

California is on the road to passing legislation, aimed at religious colleges' sexual-conduct policies for students, that would create serious conflicts for many of the state's Catholic and evangelical Protestant colleges. I've done an "explainer" article for Christianity Today that describes the bill (it's had a number of permutations) and its likely impact (students at these colleges would face a serious danger of losing their "Cal Grants," which are state educational grants, up to $9,000 yearly, for students from modest-income families). The article is in descriptive rather than normative format, but it aims to make the bill's likely consequences clear.

July 10, 2016 in Berg, Thomas, Current Affairs | Permalink

Tuesday, July 5, 2016

The Targeting of Muslims is a Core Religious-Freedom Problem

This Crux article, by a researcher at a Georgetown initiative on Christian-Muslim relations, criticizes the USCCB for not emphasizing, in the Fortnight for Freedom, that the violent or harassing targeting of Muslims is a central religious-freedom problem. (Various Catholic groups, and prominent lay Catholics like our own Robbie George, have given it prime emphasis in recent months.) Here's what the article says about the USCCB:

At its most basic level, Islamophobia is a religious freedom issue. American families can’t go to their houses of worship without fear of them being sprayed with bullets or graffiti. Men and women feel they must change the way they dress to receive fewer stares and the threat of assaults. Children are bullied at school because they are Muslim.

This is a reality that should alarm all Americans, especially Catholics concerned about issues of religious liberty.

But Islamophobia is not an issue at the forefront of the USCCB’s agenda or the Fortnight for Freedom campaign. The only reference to Muslims in the materials on the USCCB’s Fortnight webpage was in an article reposted from National Catholic Register, which spoke about “militant factions of Islam” that “kill Christian believers” in the Middle East.

Is this accurate? I share the author's premise that religious-freedom claims of various faiths tend to stand or fall together, and thus the freedom of Muslims (and Christians) must be vigorously protected. But I haven't followed this year's Fortnight, or the bishops' statements generally. If the piece is accurate, what is the explanation?

July 5, 2016 in Berg, Thomas, Current Affairs | Permalink

The Free Exercise Clause May Not Be Quite As Dead ...

... as Marc says. The denial of certiorari in Stormans, the Washington pharmacist case, was unfortunate, but one should not to read too much from a cert denial. 

I think there is a decent chance that Employment Division v. Smith will be either(1) overruled or (2) limited further to provide that certain secular exceptions to a law trigger heightened scrutiny. Although the necessity for such reexamination has been reduced by federal and state RFRAs and state constitutional doctrines, there are still almost 20 states in which no such provision is applicable. In certain cases, liberals--especially moderate-ish liberals like Breyer and Kagan--will want to invoke heightened scrutiny to protect minority religions. They can combine with Alito and (possibly to likely) Roberts and Thomas (Kennedy, I admit, is indecipherable). The case may involve a state/local government action against Muslims, or against some other group that everyone agrees is a religious minority.

But the liberal justices are also likely to limit free exercise claims when "harms to third parties" are invoked on the other side--at least, harms to specific individuals in areas that modern welfare-state liberalism regards as "public": the commercial sphere, government-funded nonprofits, and perhaps nonprofits in general. My educated guess is that mainstream liberal opinion is settling on protecting religious minorities distinctively, but in this confined way. That will mean, of course, that claims against anti-discrimination laws will face an uphill battle. (We knew that. The key will be to win moderate judges on the protection of religious non-profits.) I certainly think that liberal opinion has moved in the direction of allowing "third-party harm" arguments to limit religious freedom too easily, since a great many common, longstanding, and important accommodations (clergy-penitent privilege, draft exemptions) have such an effect. (Many people, including MOJers, have made that argument; my extended version of it is here, in part III.) So I'm not predicting a vigorous free exercise doctrine from the Court, or from the liberal justices. Not vigorous, but not dead either--not permanently.

July 5, 2016 in Berg, Thomas | Permalink

Thursday, June 23, 2016

The California Abortion-Mandate Case

California (by order of an administrative agency, not the legislature) has required all insurance companies in the state to include abortion in all health-insurance plans. In particular, it ordered seven commercial insurers (Blue Cross of CA, etc.) to add abortion coverage to their policies that did not already have it. The mandate covers what everyone agrees are abortions; the dispute over whether drugs like Ella or Plan B cause abortions of new embryos is irrelevant here.

There are questions whether the order violated the state administrative procedure act (the agency did not go through notice and comment). But on the substantive questions whether this violates conscience protections, two things happened this week: (1) The US Department of Health and Human Services (HHS) rejected a complaint that that the California order violates the federal Hyde-Weldon Amendment, which prohibits any recipient of federal funds (including a state) from discriminating against a "health care entity," including a "health insurance plan," on the ground that it does not cover abortion. (2) In a federal lawsuit against the state, the district court denied the state's motion to dismiss claims brought by religious organizations alleging that the mandate violates their state and federal constitutional rights of religious freedom. The denial of the motion, of course, simply means that the challenge survives on the pleadings and enters the discovery phase.

Here are some initial thoughts on the case. The California mandate could have a serious effect on the conscience of those opposed to abortion. But there are some complexities in the case that require exploring.

It appears that California has allowed at least one exemption for a plan offered to religious employers. More about that issue in a minute. But first, the main ground for HHS's decision to reject the Hyde-Weldon complaint--a ground that seems incorrect to me.

A. "Plan" versus "Employer"?

In its letter rejecting the Hyde-Weldon complaint and closing its investigation, HHS  says that the "health insurance plan" protected by Hyde-Weldon includes only the insurer who issues the plan, not the employer who maintains it and pays for it. Because the insurers in California did not object to adding abortion coverage, HHS says, Hyde-Weldon is not violated. That reading makes Hyde-Weldon silly and keeps it from accomplishing its goal of protecting conscience on abortion. HHS's position creates a simple end-around by which California and other states can impose on the conscience of thousands of employers simply by ordering that no abortion-excluding plans be available. It is more natural, and more consistent with the Amendment's purpose, to read "health insurance plan" to cover the employer's plan. (For similar reasons, objecting employers should have legal standing to challenge the California mandate; it clearly causes them concrete harm by making plans without abortion coverage unavailable.)
(HHS and the state say that the employer can avoid the imposition on conscience by self-insuring: but that is difficult and complex for many small employers. Just how difficult will probably be an issue emerging in discovery in the litigation. But although self-funding is increasing among small businesses, it still involves taking on risks that many such employers (including, presumably, smaller religious organizations) cannot handle--and reportedly several states, including California, are considering restricting small businesses' capacity to self-insure.)
But even on the premise that Hyde-Weldon only applies to insurers, HHS's reasoning seems wrong. The HHS letter says that Hyde-Weldon protects only those entities that object to abortion coverage, and these insurers didn't object to adding it. But Hyde-Weldon doesn't require a conscientious objection in order to apply: by its terms, it prohibits a federally-funded state from "subject[ing] any individual or institutional health care entity to discrimination on the basis that the health care entity does not provide for, pay for, provide coverage of, or refer for abortions" (emphases added). The trigger for protection is simply that the plan doesn't cover abortion, not that the insurer objects to covering it. Hyde-Weldon seems literally to prohibit California's order to insurers. Following the plain meaning would also protect the moral objections of employers and employees.
B. A Religious-Employer Exemption that Apparently Has Been Granted


The HHS letter (p. 2) says that Blue Cross of CA received authorization from the state to offer a plan to religious employers that excluded elective abortion. But that does not dispose of the case, for at least three reasons:

First, it sounds like the approval may have been a one-off--its availability not made clear to anyone else. 
Second, according to the federal court complaint (paras. 66-67), California authorized a religious-employer plan,  but it covered abortions for rape and incest as well as the mother's life. The plaintiff church, Skyline Wesleyan, objects to paying for abortions in those first two categories.
     The district court opinion (at p. 8) notes this partial exemption, saying: "Plaintiff alleges that Defendants have granted partial exemptions to the coverage requirement to religious employers that request such exemptions but that Defendants have been unwilling to grant any employer the complete exemption that Plaintiff seeks." And the court adds that "In light of Defendants’ system for granting exemptions, the parties may wish to investigate whether they can come to an arrangement that will meet the needs of all stakeholders." Id. n.2 (citing Zubik v. Burwell). Given these facts, California arguably has a practice of "individualized exemptions" that triggers strict Free Exercise Clause scrutiny even under Employment Division v. Smith. (The complaint also mentions some categorical secular exemptions in the underlying state statute, which likewise might be enough to trigger strict scrutiny.) The existence of these exemptions  may also undercut an asserted compelling interest in mandating that every plan cover abortion. (The compelling interest test cannot apply by virtue of a state RFRA, since California does not have one; and the level of scrutiny under California's free exercise clause is uncertain.)


Third and finally, abortion is a serious enough matter for the objector's conscience--the taking of a distinct human life--that even for-profit businesses (at the very least, some) ought to be protected from being forced to cover it. As the Supreme Court said in Burwell v. Hobby Lobby, if the government mandated employers to cover unquestioned abortions (and here, again, there is no dispute they are abortions), "[t]he owners of many closely held corporations could not in good conscience provide such coverage, and thus [the government] would effectively exclude these people from full participation in the economic life of the Nation." (Again, the self-insurance option can be difficult for smaller businesses.)

June 23, 2016 in Berg, Thomas, Current Affairs | Permalink

Sunday, June 5, 2016

Doerflinger: It Was "Tragic" and "Unwise" to Target Pro-Life Democrats

Richard Doerflinger, the longtime director of pro-life activities for the U.S. Catholic bishops, is retiring and has given an interview to the National Catholic Register. In it he reflects on, among other things, lessons learned from the Affordable Care Act's political fallout. As many will remember, pro-life Democrats who had worked for the Stupak Amendment to the ACA (putting the most explicit restrictions on abortion funding), but who ultimately agreed to vote for the non-Stupak version of the law with an executive order on abortion funding, were targeted by pro-life fund-raising groups in the 2010 midterms. All but a few of those Democrats were defeated. Here's Doerflinger:

     In the end, something happened that I thought was very tragic. The Democrats who pushed forward with the Stupak amendment, but then had their arms twisted to support the bill, were targeted in the next election.


     It was a bad vote. But pro-lifers’ decision to target these legislators was unwise. They were pro-life members of the House, a force for our values within the Democrat Party, and you lost them as allies.

Kristen Day of Democrats for Life (on whose board I sit) reacts with points explaining why Doerflinger's recognition is correct, if sadly belated. The destruction of pro-life Democrats, she notes, eliminated the legislators who were the bishops' "natural allies" on the range of issues addressed by Catholic social thought, including "immigration reform, paid maternity leave," and "the social support that is critical to providing fuller support for women and families to choose not to abort their children." Their elimination made the pro-life movement entirely dependent on Republicans, which is turning out to be a very dicey bet as that party flirts, at least at the national level, with self-destruction at worst and (because of demographics) marginalization at best.

Was it worth it? The position apparently was that a vote against the ACA was not only pro-life--despite the various anti-abortion provisions and social supports in the law (which I among others detailed*)--but was so obviously the only possible position for a pro-life legislator to take that those who struck the balance the other way had to be chased out of office. Kristen Day explains why (as DFLA predicted in 2010) that assessment of the ACA and abortion funding has turned out to be far from the case: 

    Conservative pro-lifers were committed to the notion that lines of women would form outside federally funded clinics, eager to wait for their “free” abortions funded by our hard-earned tax dollars.  A Lozier Institute report cautioned that the ACA would swell abortion rates by more than 111,500 federally funded abortions per year.


     Fortunately, the Lozier report was flat-out wrong.  A 2016 Associated Press study indicated that the number of abortions has decreased at an average rate of 12 percent in almost every state.
     The debate on the ACA brought awareness to the number of health insurance plans covering abortion and increased demand for, and awareness of, plans that do not cover abortion.  A majority of health insurance companies and organizations, including the Republican National Committee, covered abortion at that time.  Prior to the ACA, five states restricted abortion coverage in insurance.
     Today, twenty-six states prohibit abortion coverage.  Twenty-one states allow coverage for abortion only in limited circumstances.  Next year, [because of the ACA's own requirements,] every state must provide at least one plan that does not include abortion coverage.  And more families have access to health care.  Only two (both in Alaska) of the 155 multi-state plans cover abortion.
Was targeting the pro-life Democrats for defeat worth it?
* The linked analysis of mine was originally posted in 2010; it has just been reposted on the Democrats for Life website because the original link had broken.--TB

June 5, 2016 in Berg, Thomas, Current Affairs | Permalink

Saturday, May 28, 2016

The Pope Praises Perinatal Hospice Services

Perinatal hospice care has been getting increasing media attention in recent months (including a Washington Post article last month). These programs provide hospice and palliative care for infants who have been born with severe, life-shortening conditions--major anomalies in the brain, kidneys, or other organs--that mean they will live a few minutes, a few hours, a few days, or in some cases a few weeks. Until recently parents who received such a diagnosis prenatally were commonly advised to terminate the pregnancy so they could "start over" as soon as possible. But in the last 15 years, programs have grown up around the country, and elsewhere in the world, that provide services--mostly social and psychological services for the family, along with palliative care for the child--so that parents who determine to give birth in these circumstances can make the most of the brief time with their child. There are a little more than 200 programs in the U.S., many (but definitely not all) housed in the maternity/neonatal facilities of hospitals. You can find a remarkable video about perinatal hospice services here, and a treasure trove of information and resources at perinatalhospice.org.

This week Pope Francis commended the perinatal hospice at Gemelli Hospital in Rome, one of four such programs in Italy, in a message to a conference on perinatal care held at the hospital. According to Vatican Radio, the Pope, among other things, 

expressed his hope for the continued success of the project “in the service of the person and in the progress of medical science, in constant reference to perennial human and Christian values.” He noted [the staff's] efforts in “seeking to respond in the best possible way to the poverty which is the situation of the child with grave pathologies, with the greatest possible love...."

There has been a bit of controversy, noted in the Post article, over state laws that require  doctors giving a prenatal diagnosis of one of these conditions to inform the parents about perinatal hospice options. Any such controversy should not sweep in, or undercut support for, the perinatal hospice programs themselves. Their work, providing vital services to parents who decide to give birth, should appeal to both pro-life and pro-choice people.

May 28, 2016 in Berg, Thomas | Permalink

Friday, May 20, 2016

Methodists Withdraw from Religious Pro-Abortion-Rights Group

This is quite a striking vote, cutting against the trend in which mainline Protestant denominations over the years became  increasingly allied, if only in their policy offices, with the broadest versions of the right to abort.

     Evangelicals celebrated the United Methodist Church’s decision yesterday to leave a pro-choice advocacy group it co-founded 43 years before. 

     At its general conference, delegates voted 425-268 to withdraw from the Religious Coalition for Reproductive Choice (RCRC), an interfaith organization whose broad support extends to late-term and sex-selective abortions—a practice that the church’s social principles “unconditionally reject.”

This is one more data point in the emerging pattern that the ideological middle of the country--which Methodists tend to track--will not accept hard-line pro-abortion-rights positions, even as it increasingly accepts the progressive position on the other major culture war issue of gay rights. The two are very different, and their paths in public opinion charts will increasingly diverge.

May 20, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink