Friday, April 8, 2016
I know that Brooks's writing and views are not for everyone, but I still often like what he writes, and these piece ("How Covenants Make Us") struck me as particularly interesting and also as consonant with a number of the themes we've been kicking around for the last decade or so here at MOJ. A bit:
Creating situatedness requires a different way of thinking. When we go out and do a deal, we make a contract. When we are situated within something it is because we have made a covenant. A contract protects interests, Pally notes, but a covenant protects relationships. A covenant exists between people who understand they are part of one another. It involves a vow to serve the relationship that is sealed by love: Where you go, I will go. Where you stay, I will stay. Your people shall be my people. . . .
Check it out.
Wednesday, April 6, 2016
Get your copy here.
Religious accommodation is going through a period of heated contestation in multiple arenas: in the courts, in the academy, and in public and political debate. For the most part, the contest involves the specific occasions and doctrinal mechanics of accommodation, not its availability. But contestation over specific applications, particularly when it is intertwined with a larger trend of political polarization, can lead to a greater skepticism about and rejection of religious accommodation altogether. And so it has. As a thick version of equality and dignity assumes the status of "the master value of our time," as a rationalist rather than pluralist strand of liberalism becomes increasingly dominant, as specific controversies evoke strong concerns about the danger of religious accommodation, and as pluralism is seen more as a danger to be cabined than as a good in itself, more liberals have adopted a position that is much more critical of religious accommodation as such. To slow or halt that momentum, and not simply relegate accommodationist arguments to the realm of religious traditionalism or political conservatism and encourage further polarization around the topic, arguments for religious accommodation are needed that speak in roughly liberal terms to liberal audiences.
That is the primary goal of this Article. It sets out one standard liberal concern about religious accommodation: that it encourages or entrenches illiberalism and illiberal groups. And it argues that resistance or rejection of religious accommodation as such on illiberalism-fearing grounds fails to fully appreciate the bifurcated response to such refusals. While some religious groups, or portions of such groups, may liberalize as a result of refusals to accommodate, other groups or sub-groups may respond by becoming more, and more intensely, illiberal. Those groups are not only likely to become more confirmed in their illiberal views, but also to withdraw from participation in the larger liberal society, adopting a "Benedict option" approach that makes them more insular and less involved in broader public discussion and participation, and that will make it even more difficult for its most vulnerable members to have access to information or exit options. There are, in short, good reasons for liberals to continue to believe in the value and availability, from their own perspective, of a general principle of religious accommodation.
The Article has three secondary goals. First, it discusses an important argument against accommodation made some time ago by Mark Tushnet: a theological argument for skepticism about religious accommodation, on the grounds that the state should in some sense be indifferent to the threat of religious martyrdom, and that religious groups err by moving into the state's realm when they seek accommodations to avoid that prospect. I argue that Tushnet's argument is important and intriguing, but too narrow in its view of the religious realm and its relation to the secular realm. Religious groups are thus not precluded from arguing for governmental accommodation of religion, and liberals should and do continue to have reasons to favor an anti-martyrdom position. Second, I argue that the Article's primary argument has implications for how governmental decision-makers, particularly judges, should approach accommodation cases. Drawing on the literature dealing with how courts should speak to constitutional "losers," I argue that they should avoid categorical, near-contemptuous rejections of religious arguments for accommodation, lest they add to the threat of illiberal retrenchment and insularity and drive illiberal groups out of the general sphere of liberal society altogether. Religious groups may indeed lose in some accommodation cases, but it can matter how they lose. Finally, albeit more implicitly than expressly, I suggest that the current debate over accommodation would benefit from greater emphasis on the pluralist strand of liberalism, and a view of religious and other forms of pluralism as a positive good to be encouraged rather than a threat to be managed.
This paper was Paul's contribution to an excellent symposium hosted by the Notre Dame Law Review.
It's a nice problem to have but, sometimes, it is just not possible to attend all of the interesting events going on in lovely, cosmopolitan South Bend, Indiana. This conference, "The End of Human Dignity? Recovering the Intellectual Appeal of Human Dignity for the Philosophical and Theological Imagination", has featured an array of amazing speakers. Here's the blurb:
In recent years the concept of human dignity has come under intense scrutiny and has even been dismissed as “stupid” and “useless.” The erosion or outright dismissal of the concept of human dignity raises foundational questions, such as who is the human person and what kind of communities do we wish to inhabit? What would society look like if the language of human dignity were partly or entirely eliminated from public discourse? Such questions require that those who would assert the concept’s normativity must offer a philosophical and theological response that takes seriously the critique, renews the discourse, and offers new possibilities for how we may meaningfully engage the concept of human dignity.
My understanding is that, soon, video of the talks will be available online. Stay tuned!
Tuesday, April 5, 2016
St. John's Center for Law and Religion was delighted and honored to host Justice Samuel Alito at our colloquium in law and religion yesterday. Justice Alito discussed Hobby Lobby v. Burwell; Town of Greece v. Galloway; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; CLS v. Martinez; Salazar v. Buono; and Summum v. Pleasant Grove, as well as his dissent from denial of certiorari in Ben-Levi v. Brown and two free exercise decisions he authored as a Third Circuit judge, Fraternal Order of Police v. City of Newark and Blackhawk v. Pennsylvania.
We had a lovely day today as well, as Justice Alito discussed several important free speech cases in which he dissented with my constitutional law class–US v. Stevens, Snyder v. Phelps, and US v. Alvarez. It was a true pleasure to have him.
Monday, April 4, 2016
I suppose it goes without saying, but I will say it anyway: Mirror of Justice is rooting, in the National Championship, for the Catholic university, and not for the den of iniquity, dishonesty, and corruption (with ugly-colored uniforms to boot). Go Wildcats!
Sunday, April 3, 2016
Thank you to Michael Perry for directing us to the recently posted paper by Professor Kaveny on "The Case of the Little Sisters of the Poor." I haven't carefully considered the precise claims in Profeesor Kaveny's paper yet, but I've seen enough to post with questions now.
The abstract alone puts me on the defensive. In it, Professor Kaveny charges that "the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others." Further, "[t]his distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy."
These claims hit home because I represent the Little Sisters of the Poor, and have since the beginning of this saga. In so doing, I have tried my best to draw on an accurate understanding of Catholic moral theology and federal law.
I initially tried to help the Little Sisters avoid going to court. After President Obama expressed openness to an expanded exemption, we filed comments explaining why the Administration's initial offerring was unacceptable. Those comments drew directly from the Little Sisters' public statements -- statements that were written, I unfortunately need to add, without the input of any lawyers or PR types.
I failed ... and the government failed us, by promulgating revised regulations that remained problematic.
The Little Sisters wanted to stay faithful both to their religious mission and to federal law. RFRA, among other provisions of federal law, was on their side. And so the case came.
We ended up in court--with more, and more suitable, lawyers--because the regulations required the Little Sisters to arrange their health benefit plans contrary to how they had arranged them for years in compliance Catholic social teaching. The contraceptive mandate threatened to alter the status quo the Little Sisters had maintained for many years successfully, for many years without controversy, and until then without breaking federal law.
The Little Sisters' alleged misunderstanding of "Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others" (in Professor Kaveny's words) predates by decades the Obama Administration's controversial implementation of the women's preventive health services provision. As I read Professor Kaveny's paper, then, here are some of the questions that will be on my mind:
(1) Have the Little Sisters of the Poor always misunderstood "Roman Catholic moral teaching" in arranging their health benefits to exclude contraceptive and abortifacient coverage?
(2) If the Little Sisters' pre-existing health benefits arrangements rested, instead, on a proper understanding of "Roman Catholic moral teaching," what was it about the Obama Administration's regulation that altered the analysis under Catholic moral theology?
(3) Does it matter to theological analysis of compliance with this regulation whether it was promulgated in violation of a federal statute, namely the RFRA?
(4) If Professor Kaveny had been a lawyer advising the Little Sisters of the Poor when the initial regulation had been promulgated, would she have advised them to roll over and abandon their longstanding arrangements? What, concretely, would she have advised?
(5) If it is to be regretted that "the adversarial nature of the legal process has pressed [the Little Sisters of the Poor] to understand both their own obligations and those of the government in a binary manner," who is more responsible for this state of affairs: (a) the Little Sisters and their lawyers, or (b) the Administration and its enablers?
Saturday, April 2, 2016
Cathleen Kaveny, the Darald and Juliet Libby Professor at Boston College--holding appointments both in the School of Law and in the Department of Theology--has just posted to SSRN an excellent paper: Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor. You can download the paper here.
Friday, April 1, 2016
As Rick notes below, this week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.
Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
I can’t improve on Rick's insightful speculation about what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies. Let them figure out how to comply.
But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not really shifting it from the employer or from an objecting party.
Something perhaps to watch in the upcoming briefing.
I've blogged many times over the years in response to a claim that is often tossed around but is no less irritating, and no more persuasive, for its familiarity, i.e., that it's "hypocritical" of pro-life people to not support "murder" prosecutions of women who undergo abortions. This piece, by Ruth Marcus, is just the latest. For writers even a little bit familiar with the basics of Criminal Law, or who are willing to do just a little bit of research into the history of abortion regulation and abortion-related prosecutions, the claim is easy to debunk (and, therefore, should not be so often lobbed by otherwise well-informed writers).
UPDATE: Mark Silk makes, I think, a similar mistake in this piece. He says:
The obvious truth in this case has to do with the pro-life position that abortion is murder. For if that’s the case, how can a woman who voluntarily obtains one not incur some criminal liability?
What's "obvious," though, is that "murder" is a legal term of art -- one that has long reflected fine-grained distinctions regarding the state-of-mind of a person who causes another person's death. It is utterly unremarkable and completely common for the law to treat some homicides as non-criminal wrongs. And, it's neither "hypocritical" nor (in Silk's words) a "lie" for pro-lifers to endorse a legal approach to the particular and complicated wrong that is abortion that deals with some contributors to the wrong (e.g., the doctor, the pharmacist, etc.) using the criminal-law method and with other contributors in other ways.
Thursday, March 31, 2016