Mirror of Justice

On the Uses of the Epigraph

"Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?"  That is the question Professor Richard Pildes asks over at Balkinization.  The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year -- a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision.  In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.

I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as "authority" for a constitutional decision, at least unless the modifier "persuasive" is added.  But even "persuasive authority" is not quite right.  The body of Judge Calabresi's concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the "authority" for his opinion.  In his post, Prof. Pildes describes the use of the epigraph as providing "normative support" for Judge Calabresi's views, and this seems closer, though also not exactly right.

I have always thought that epigraphs are not argument.  They are not even suggestions of argument.  Their function is to orient the reader obliquely toward a certain mood or manner of thinking.  In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority.  "Authority" is hardly the point.

All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.   

A Response to Robby From Marty

Marty Lederman sends in the following response to Robby's column (Marty is having difficulty posting comments, and it seemed to me that this one is responsive more to Professor George's piece than to my post).

If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others.  He writes:

"Morality is fundamentally a matter of (a) your intentions—which, by definition, aren’t the issue in merely material cooperation, only in formal—and of (b) the fairness of your choice as judged by its foreseen good and bad effects upon all concerned.  It is true that moralists draw a further distinction between 'proximate' and 'remote' material cooperation; but that is because material cooperation often has worse effects as a result of being more immediate.  Of course, this doesn’t always hold. And even when it does, it is the additional harms—not the immediacy of your involvement itself—that make a difference (perhaps decisively) for moral evaluation.  These additional harms include all the wrongs that would have been averted if you hadn’t played a role; their toll on others; and the false beliefs about right and wrong that people infer from your involvement, to name but three of many possible factors.  With this framework in place, we can see that the Obama administration’s proposed changes would really change nothing that matters morally." 

The key here is the assertion that the critical distinction "between 'proximate' and 'remote' material cooperation [is made] because material cooperation often has worse *effects* as a result of being more immediate."  This strikes me as dubious as an empirical matter (i.e., remote material cooperation does not "often" have lesser effects), and it's not how I -- an interloper in such matters -- had understood Catholic understandings of material cooperation.  I'd welcome insight on this question from others who know much more than I.

More to the point, think of the implications of this view:  To be sure, it would mean that there's little or no moral difference between the "before" and "after" HHS proposals -- but then, there'd also be no difference between either of them and the compelled assessment of taxes.  Since we know, to a 100% certainty, that our tax dollars will in fact be used, thanks to the decisions of others (legislatures, administrators, private actors), for activities that we believe to be immoral, we are just as morally culpable for those actions as we are for those that are done with our much more "proximate" material assistance.  (I should add that the alleged "wrongs" would not "have been averted" in either case if the objecting employer played no role -- the employees in question will use contraception in both scenarios, and, indeed, that use will be subsidized by someone -- in part by the premiums the employees themselves pay, in part by the state (using tax dollar collected from, inter alia, Catholic employers), in part by insurance companies using funds collected from other customers, etc.)

Indeed, wouldn't this also mean that Catholic employers act immorally if they do not prohibit their employees -- on penalty of discharge -- from using the wages they receive for the purchase of contraception?

Am I missing something?  If not, is this really what Catholic doctrine teaches and, if so, is it really something the state should accommodate?

Some Thoughts in Response to Rob

I started to post this as a response to some of Rob's thoughtful questions, but the comment became long, so I am posting here.  I am as puzzled by the new arrangement as is Rob.  Rob says: "If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds)..."

I do not think one gets to this difficult question, for several reasons.

1.  Why would a non-objecting employer or a non-objecting insured ever agree to foot the bill for other people not on its employment roll?  Or for employers with whose beliefs it may vehemently disagree (and might not that, in turn, give rise to a possible conscience objection?), and in a situation where the objecting employer was paying nothing? That seems wildly unlikely to me.  Non-objecting employers using the same insurance company as the objecting employers would almost certainly object strenuously to this.  If their objections were not heeded, wouldn't they seek other insurers?  I suppose this may depend on a cost/benefit assessment, but it seems implausible to think that the cost would be borne only by non-objecting employers.  And how could the government compel that sort of arrangement, even if that's what it intended (also, in my opinion, not likely)?

2.  It also seems implausible that the insurer would provide the services "for free."  Let's put aside the canard about whether the coverage of contraceptive services is "revenue neutral," as this is an irrelevancy about whether the insurer will in the end make money from covering these services.  I think Bob Hockett in one of his posts below suggested that one possibility is that the insurer might make a separate insurance "contract" with the insured, for providing these services.  That seems unlikely to me, for two reasons.  (A) A contract in which one side provides products for free to the other side doesn't seem to me to be a contract at all, as there is no consideration.  It's a gift and therefore unenforceable.  (B) Nobody has suggested that a separate contract between insurer and insured is an option.  What we are talking about is that the religious employer pays for a policy in which products as to which it has a conscientious objection are included as part of what it is paying for, even if (now) not listed on the terms of the policy that it provides to the employee.

3.  On the last point, I cannot see my way through to any other conclusion than that the religious employer will be paying for these services.  It will pay for them by procuring its insurance contract.  And it will pay for them in the form of increased premiums (again, whatever may ultimately be the case for the insurer's bottom line).  I am not familiar with what an insurer is required to disclose to an employer about the reasons for an increase in premium.  But it would surprise me if the insurer needed to say to the employer, "We hereby increase your premium by X in order to cover the costs of contraceptive services which we must now provide to your employees."  But whether the terms of the premium increase are explicit or implicit, I am having difficulty escaping the conclusion that it is the employer who will be paying.  

UPDATE: Having read Robby's helpful discussion above, which analyzes what the insurer needs to do as making an "offer" which the employee can then "accept," I thought to reemphasize those features traditionally necessary to make a contract: offer, acceptance, and bargained-for consideration.  As a general matter, there is no contract without the last component.  But in Robby's description, the offer and acceptance are incident to the insurance contract proper itself.  So the bargained-for consideration is the money that the employer has paid to procure the policy.  That's as it had to be, of course, since a separate contract would require separate consideration, and could not be procured for free.

A Thought About What Makes a Burden "Substantial"

There has been some discussion about what it is that would make a "burden" qualify as "substantial" under the terms of the Religious Freedom Restoration Act.  I had a thought about this that I wanted to try out here.  It seems to me that the gravity of a burden is frequently intimately connected with the centrality, or importance, of the belief that is felt to be burdened: the more central, or important, the religious tenet or view, the greater the obligation that the claimant will feel in adhering to it, and the more substantial will be the burden felt by the claimant in having to endure not adhering to it.  Yet RFRA eliminated the inquiry into centrality.  That decision was, I think, intended to prevent courts from making judgments about (a) how important a belief was, in order to determine (b) how severe or substantial the burden was.  One reason for eliminating the centrality inquiry was an establishmentarian concern; another was a concern about competence.  

The difficulty is that the standard continues to be a "substantial" burden.  That cannot only mean a burden as to which a claimant sincerely objects on religious grounds.  But how would one determine a burden's substantiality without being permitted to inquire at all about a belief or practice's centrality, or importance?  I'm not even sure what the inquiry would look like.  And that may be why, in the RFRA case law, one tends to see a great deal of deference to the claimant about what constitutes a "substantial" burden in the first place (and cases often get resolved under the compelling interest leg) -- exactly because of the danger that an inquiry into the burden's gravity, or substantiality, can easily bleed over into an inquiry about the belief or practice's centrality, or importance, within the religious system.  Sometimes one sees the statement that a substantial burden is one where the state puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs."  Thomas v. Rev. Bd.  But that only seems to restate a kind of subjective test -- how much pressure is "substantial pressure" will depend upon an inquiry about the nature of the coercion felt by the claimant in light of the religious belief's importance to the claimant.  Pressure only matters if the belief is religious (not generally a question) and about something important...or central.  That is, a claimant is sensitive to pressure if government is squeezing a pressure point.  But because centrality is no longer a cognizable concern, we are necessarily left with a healthy measure of deference to the claimant's feelings about the quality of the burden.  Thoughts?

A Question from Marty Lederman

Marty Lederman sends in the following in response to some of the discussion here about the contraception mandate.  I've opened comments for substantive responses to the specific questions that Marty asks.

I, too, am a longstanding proponent of RFRA, and of religious exemptions where the standards of RFRA are satisfied.  But Marc, before one even gets to the question of the "least restrictive means" of advancing the government’s public health interest, the employer would have to demonstrate a substantial burden on its exercise of religion.  And on that question, I remain genuinely baffled, because it seems to me the burden on religious exercise—the compelled “complicity with evil”—has merely been presumed, rather than explained, by virtually everyone involved in this debate.  

I am taking as a given a particular employer’s sincere belief that the use of contraception is sinful or greviously wrong, on religious grounds—and that material cooperation with that wrong would itself be wrongful.  Nevertheless, I would welcome anyone's careful and reasoned articulation of how the HHS rule would substantially burden an employer's religious exercise or, more to the point, how it would require material cooperation with evil under Catholic doctrine (or the equivalent under other religious precepts), or (as we now so often hear) "force the employer to choose between complying with the law or religious commands."  

Any employer's funds are, after all, invariably and regularly, but indirectly, used for activities that the employer considers wrong or sinful—through the government's use of taxes, the employee's use of salary, the employee's use of the employer's phone and computer (which of course might be used to purchase contraception, procure abortion services, etc.), and so on.  How is this case materially different?

Here, the state would merely be requiring the employer to offer a group health plan to its employees that covers all forms of medical care beneficial to health, including contraception.  (Contraception, that is to say, is hardly the focus of such a plan—it is but one of countless forms of health care that are required to be covered.)  The cost of the premiums would presumably be shared by the employer and employees, although it's not clear that federal law actually requires an employer payment.  (I may be wrong about that, but I don't believe federal law would require the employer to subsidize that plan at all—such subsidization is a function of market arrangements between employers and insurance companies.  I'll proceed here, however, on the assumption that, at least as a practical matter, virtually all employers would choose to pay part of the cost of the plan, in order to lower the premiums for their employees.)  The cost to the employer in subsidizing the group plan will, in turn, be reflected in lower salary payments to its employees.  In other words, the employer would have transferred the money in question to employees, anyway, but now that exchange will take a different form, one that facilitates a lower cost of health care through efficiencies of scale.  

The employer would not "choose" for the health plan to include contraception—that would be a standard condition as a requirement of federal law (just as the postal employee cannot choose which letters to deliver, including to the abortion clinic, etc.).  And, of course, and most importantly, the plan will not be used to subsidize purchase of insurance unless a particular employee chooses to use it in that way.  In other words, there will always be intervening private choice, akin to that in the sort of voucher plan that many of the writers on this blog have long insisted breaks the chain of responsibility and endorsement between the state and religious education, social services. etc.  And if and when an employee chooses to use the plan to cover contraception, not only will the employer not be required to administer or hand over the contraceptives (this is not, in other words, a case analogous to the doctor being required personally to perform an abortion), and not only will the funds not come directly from the employer, but the employer will not even know about the insurance company's reimbursement—just as if the employee had used her wages from the employer for the same purpose.

Moreover, the employer will remain free to express—to its employees, to the public, or to any other audience of its choosing—in the most vigorous of terms, that it believes the use of contraception is sinful; that it discourages and condemns such use by its employees; that it opposes the HHS rule; and that it would never willingly associate itself, however indirectly, with an insurance plan that reimburses for such contraceptive use.  That is to say, there will be no risk of any confusion about where the employer stands on such issues.  (As I understand it—woefully inadequately, no doubt—this also forecloses the possibility of “scandal” under Catholic teachings; but I welcome further insight on that doctrine, of which I know very little.)

Under these circumstances, is there any plausible case that the employer is "complicit" in the use of contraception, under any Catholic or other religious doctrine?   The fact that many of the Catholic employers in question—those who have a sincere and genuine belief that contraception and its willful and material facilitation are sinful—do, in fact, offer such plans in conformity with similar state laws surely offers further reason to question whether there is a strong case that such employers are "cooperating with evil."  (Indeed, as I understand it, under most state laws the employer is not required to provide group plans at all, and therefore there is a stronger sense of employer "choice" in those cases than there would be under the HHS rule.)

These are not rhetorical questions—I'm genuinely curious as to the answers (as are my students, who have repeatedly been asking such questions in class).  The Dana Dillon post (http://catholicmoraltheology.com/hhs-roundtable-cooperation-with-evil/) to which Rick linked last week was helpful, as was the Vincent Miller post to which Dillon linked; but frankly, they merely strengthened my doubts about whether this is really a case involving "material cooperation with evil."

Walsh on Greenhouse

My friend Kevin Walsh has a smart reaction to the Linda Greenhouse column that I wrote about yesterday, noting that the least restrictive means portion of the RFRA standard is an almost sure loser for the Administration.  A bit from Kevin's analysis:

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law . . . .

The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

The Rhetoric and the Reality of Employment Division v. Smith

This column by Linda Greenhouse offering a defense of the HHS contraception mandate begins mistakenly, in my opinion, when it claims that the "obvious starting point" in considering the question of the claims of conscience being made against the mandate is "the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point in their reproductive lives."  I think that is not the right place to begin, but it's territory that has been covered at length here and elsewhere.

The more interesting point that Greenhouse makes is that Employment Division v. Smith demonstrates that the claim made by those who are opposed to the contraception mandate -- a claim "to conscience that trumps law" -- is one which the Supreme Court emphatically rejected in Smith.  "[T]hat," Greenhouse writes, "is not a principle that our legal system embraces."

Both the way of posing the proposition and the conclusion seem, again, mistaken to me, but let's concede the former and explore the latter.  Suppose it is really true that we are dealing with a claim that "conscience trumps law."  "Our legal system," in fact, "embraces" just this claim in a great variety of situations.  If it did not, the Roman Catholic Church would be compelled to appoint female priests; it would be forbidden from offering sacramental wine to children; religious communities would be compelled to hire those who don't share their religious commitments.  Moreover, as Greenhouse recognizes later, "our legal system" responded to Smith by passing some statutes which make it highly likely that in some situations, "conscience trumps law."  So it simply is not true that "our legal system" does not make any room for the protection of conscience when it conflicts with law.

Greenhouse's praise for Smith also represents, I think, a widespread misconception about Smith.  The misconception is that Smith is an iron rule with no exceptions -- that any law which appears "neutral" when considered in some sort of antiseptic laboratory (i.e., neutral by the plain meaning of the text) is permissible.  But in fact, that isn't at all what Smith held.  As I and Michael have discussed here, Smith's exceptions are, or are rapidly becoming, at least as important as its rule.  The rhetorical appeal of Smith's hard-edged language has given people the misimpression that "our legal system" admits of no exceptions for religious conscience, ever.  And this, from my point of view, is another problem with Smith.  It confuses the discourse about religious liberty -- it warps it by suggesting a hard, exceptionless rule as somehow constitutive of "our" political and legal traditions.  But that rule -- and the values which underwrite it -- have never, in fact, represented our approach to religious liberty.  

Cathy Kaveny at St. John's Law School

The Center for Law and Religion is delighted to announce that Professor Cathleen Kaveny (Notre Dame) will visit us at St. John's Law School next Monday, February 13, at 4:15.  Hers is the second session in our ongoing seminar, Colloquium in Law: Law and Religion.  Cathy's very interesting paper is titled, Love, Justice, and Law: The Strange Case of Watts v. Watts.  Academics in the New York area and beyond are welcome to attend.  Please contact me if you wish to do so.

Religious Legal Theory: Religion in Law, Law in Religion

I am pleased to announce that the St. John's Law Review has published several papers from a symposium of the Second Religious Legal Theory Conference, which our Center for Law and Religion, directed by Mark Movsesian, organized and hosted (and for which compatriot MOJ-er Steve Shiffrin gave a wonderful keynote address).  There are many excellent contributions, including a terrific keynote piece by Steve Smith, Nonestablishment, Standing, and the Soft Constitution, the text of which can be accessed at the link. 

The publication occurs at an auspicious moment, as the Third Religious Legal Theory Conference will occur at Pepperdine Law School at month's end, under the auspices of the Nootbar Institute on Law, Religion, and Ethics, and with the able organization of Bob Cochran and Michael Helfand.

What We Get When We Talk About Religion and Politics

I found this piece by Frank Bruni in Saturday's New York Times to be interesting in several respects.  One of Bruni's claims is that we have not yet really tried to explain the various character flaws and other personality quirks that we (by which I mean the Times writers) see in Mitt Romney by reference to his religious background.  It is important that we do this, says Bruni.  So, for example, we should try to understand Romney's "muffled soul" by engaging in some extended religious psychology about Mormonism.  Here's a bit from Bruni:

One longtime Republican strategist I talked with predicted that Gingrich would broach Romney’s Mormonism yet, with the aim of mobilizing the Mormon-wary evangelicals who vote in southern primaries on March 6, “Super Tuesday.”

That’s a regrettable motive. But there are valid reasons for the rest of us to home in on Romney’s religion, not in terms of its historical eccentricities but in terms of its cultural, psychological and emotional imprint on him.

His aloofness, guardedness and sporadic defensiveness: are these entwined with the experience of belonging to a minority tribe that has often been maligned and has operated in secret? Do his stamina and resilience as a candidate reflect his years of Mormon missionary work in France, during which he learned not to be daunted in the face of so much resistance that he won a mere 10 to 20 converts . . . .

And what of his sometimes huffy expectation that voters accept his current stances against abortion and gun control, to name two flips, and stop fussing over so many contrary positions in the past? Does that track with Mormonism’s blithe reluctance, according to its critics, to explain controversial tenets that it has jettisoned, like a ban on black clergy members that was in place until 1978?

I've noted before that I am increasingly skeptical that encouraging the drawing of these connections is worthwhile -- that the rhetoric of "talking" about religion in these contexts is at all helpful.  Bruni's column does little to dissuade me from that view.  Just as it would be inappropriate to understand, say, Secretary of HHS Kathleen Sebelius's decisions to do away with conscience protections on the ground that she is a lapsed Catholic with a deep-seated animus toward the Catholic Church based on some strategically chosen anecdotes about her early upbringing which, it is claimed, illuminate her "muffled soul" for the voting public to see in its full journalistic nakedness, and to draw a general connection between lapsed Catholics and support for the HHS mandate, so, too, ought it be inappropriate in this case. 

More generally, though, this is precisely the sort of low-level partisan psychologizing that we are likely to get by imagining that we can explain personality flaws on the basis of religious association.  Aloofness?  Well, sure, that's a Mormon trait.  Opportunistic waffling on the issues, coupled with inexplicable indignation?  Yes, Mormons do that.  It's part of their psychology, you see.  And if you pay attention closely enough, we the press will bare a person's soul to you.  We will explain them to you by recourse to their religious commitments, all the while reinforcing our (and, now, your) suspicions about them.  I think this is a mistake, but perhaps one which ought to have been predictable to those who advocate greater public discourse about religion.  To be clear, I am proud to be part of that group.  But increasingly I see definite costs to that approach, too.