Mirror of Justice

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Saturday, May 9, 2015

So much for "extraterritorial" rights

I recalled the other day (here) Jacques Maritain's observation that "it was five hundred years ago that we began to die."  Maritain made that observation in 1927 (in Primaute Du Spirituel, which was published in English in 1930 under the title The Things That Are Not Caesar's), so by now it's been nearly six hundred years since the patient began to die.  Maritain promptly changed his tune from the one he sang in 1927, of course, and, without benefit of Tradition, defended throughout the rest of his long life a state no longer formed and united on the basis of  "a common profession of faith" but, instead, on the basis of a "minimal unity"  (Integral Humanism 262, 261 (1934-35; Eng. 1996)).  Maritain supposed that such a minimal principle of unity would be more than enough to protect the human person's "extraterritorial " rights and privileges, that is, those that correspond to the rights of God.  In 1966, however, reading the "signs of the times" (so to speak), Maritain cautioned that "the great reversal" of which he had been the advocate depended upon this: that "it is no longer the human which takes charge of defending the divine, but the divine which offers itself to defend the human (if the latter does not refuse the aid offered."  (The Peasant of the Garonne 4 (1966; Eng. 1968)).  Is it the divine defending the human that Pope Francis has in mind when he would have us genuflect before man (see here), while he himself does not genuflect or kneel before the Blessed Sacrament (at least not in public)?  Can humans who do not take charge of defending the divine right anticipate that the divine will succeed in offering aid to humans, whose existential freedom of choice remains intact, after all?  Even in 1934-35 Maritain recognized that "[t]he Christian knows that the State has duties to God and that it should collaborate with the Church."  (Integral Humanism, 265).  Does "the Christian" any longer "know[]" as much?  If not, what will become of those "extraterritorial" rights and privileges?  Well, just look around at how "the great reversal" is working out its own internal logic one issue (or several) at a time, more and more often in courts of law -- this "territory" at the expense of higher "territory."

May 9, 2015 in Brennan, Patrick | Permalink

A Debate on the Contraceptives Coverage Mandate Litigation

The plenary session on this second day of the Petrie-Flom Conference on Law, Religions and Medicine was a debate between Adele Keim (Becket Fund for Religious Liberty) and Gregory Lipper (Americans United for Separation of Church and State).

Keim made three points in her remarks.  First, that religious diversity is good for health care and conscience protection allows that diversity to flourish.  Religiously motivated health care providers continue to be part of care landscape in this country - something that is not inevitable - because they have been permitted to operate as communities of faith (e.g. being allowed to hire employees of their faith) and because historically we have been willing to work hard to avoid widespread and foreseeable conflicts of conscience, have been especially sensitive  to conscientious objections to the taking of human life. This has allowed religious people to continue to provide important services.   

Second, the HHS regulations assault both of those background principles, failing to respect the principle that religious nonprofits have a deep interest in preserving the character of their religious communities and coerces them to provide drug they believe involves the taking of human life.  (She then spent time talking about the history of the mandate and the Hobby Lobby litigation.)

Third, the third party  harm arguments used to justify the mandate are one-sided and it is reasonable to expect that one consequence of forcing compliance is that some religious organizations will close entirely.  It is important when considering harms to acknowledge the lasting harm the mandate will do if entities like Little Sisters  leave health care entirely.

Lipper also made three points. First, religious opposition to the contraception mandate provisions are as much about ideological opposition to the Affordable Care Act itself as about religious objection.  He suggests the sincerity doctrine has been underutilized in these cases and that the fact that many of the plaintiffs in the for-profit cases had been providing contracpetion coverage prior to the mandate suggest that this is about the broader political objection to health care reform.  

Second, he argued that even if the objections are sincere, Hobby Lobby represents a dramatic expansion of the substantial burden doctrine and a cramped understanding of least restrictive means. On the former, if substantial burden is measured by the size of the fine there is no limiting principle. On the latter, if the government's ability to provide the benefit itself means there is a least restrictive means, virually anything can be provided by the government.  

Third religious accommodation are now being wielded, not as attempt to compromise, but as a trump in way that accept no compromise.  And that, he suggests will lead to evaporation of  support for religious liberty, a backlash that is already being seen.

In an earlier panel this morning, Holly Lynch did an effective job defending the majority opinion in Hobby Lobby.  But my biggest agreement with her is her final conclusion that Hobby Lobby lays bare the real problem of the ACA: a failure to move away from an employer based system of providing health care benefits.  




May 9, 2015 in Stabile, Susan | Permalink

Friday, May 8, 2015

Religious Beliefs and the LGBT Community

The panel on which I spoke this afternoon at the Petrie Flom Conference on Law, Religion and Medicine was titled Religious Beliefs and the Health of the LGBT Community. Shawn Cirncoli spoke about provision of health care to transgender persons and potential claims of religious exemptions.  Craig Knooth spoke about sexual orientation change therapy cases, suggesting that such therapy should be viewed as a form of religious ministry, with the result that prohibiting SOCE within the scope of a licence vindicates Establishment Clause concerns.  

Although recent discussions concerning religious objections to same-sex relationships have focused on the question of whether businesses can assert a religious claim that would allow them to opt out of participation in same-sex marriages, the issue I addressed in my paper for the conference relates to the training of students planning to enter counseling professions.  How should graduate schools training students to become psychologists, social workers or counselors deal with students who object on religious grounds to counseling homosexuals about their relationships, or at all?  Can a student’s religious opposition either to counseling homosexuals at all or to counseling them in ways that affirm their homosexual relationships can be accommodated in their graduate counseling training, and if so, how?  I argued that the religious views of those who wish to enter the counseling professions can be respected in a manner consistent with the primary objective of an educational institutions in training counselors in a manner that protects the interests of those who seek counseling.  

I should note that you can find a link to the Dropbox file with all of the papers from the conference here.  Hopefully my short descriptions here will prompt you to do that.

May 8, 2015 in Stabile, Susan | Permalink

The Tories and Tradition

Benjamin Disraeli

Marc DeGirolami has called our attention to the importance of law and tradition (here and here, for example), which I was pondering last night as the Conservative Party exceeded all expectations and won a narrow parliamentary majority. Even if the British Conservatives aren't, in some respects, especially conservative (and after last night's wins by the Scottish Nationalists, not especially "British" but only English), the centuries-long enduring electoral performance of the Tories is one of the most remarkable features of Anglosphere politics. I have on my office wall two portraits: Thomas More and Benjamin Disraeli (with an autograph letter of Disraeli’s) for reasons that Russell Kirk once put well about the significance of shaping a political culture and its constitutional traditions:

Now what was it, in the ideas of Disraeli, that provided the Conservatives with spirit enough to recover from Peelism and to dominate a nation more heavily industrialized than any other in the world? What enabled the party of the country gentlemen to hold office well into the twentieth century, when they thought themselves irretrievably ruined in 1845? How did Disraeli’s theory of English history take shape as a political philosophy? The fascination of Disraeli’s personality, and the details of his long struggle against Gladstone, often obscure estimates of his accomplishment. When admirers of Lord Beaconsfield endeavor to sum up his achievements, sometimes one is confronted with a miscellaneous list of innovations--the Reform of 1867, the Factory Acts, aid to schools, commencement of a program of public housing--as if these were of themselves conservative measures. In truth, Disraeli's positive legislation sometimes was inconsistent with his theory, and in any case inferior to it. His really important achievement, as a political leader, was implanting in the public imagination an ideal of Toryism which has been immeasurably valuable in keeping Britain faithful to her constitutional traditions. The Primrose League mattered more than Suez. A foreigner who travels today through West Riding, say, from Leeds to Sheffield, or through any other densely-settled British industrial region, must be astonished that Conservative governments can exist in Britain. Yet many of the workingmen who live in these grim brick rows or in the monotony of the new council-houses vote for Conservative candidates; in the country at large, the Tories claim millions of supporters among the regular trade-union members, and many more among the laboring classes in general. Britain, which Saint-Simon thought ripe for proletarian revolution during Liverpool's ministry, was still Tory enough in 1951 to make Churchill prime minister and in 1986 to sustain a Tory lady in that office. Nowhere else in the modern world has a unified conservative party enjoyed such continuity of purpose and such enduring popular support. In great part, this is the triumph of Disraeli.

Russell Kirk, The Conservative Mind: From Burke to Eliot (7th rev. ed., 1986), 271.

May 8, 2015 in Moreland, Michael | Permalink

Law, Religion and Health Care Institutions

The second panel at the Petrie Flom Conference on Law, Religion and Health in America addressed health care institutions.

Ryan Meade argued that hospitals cannot have a conscience because they do not have an intellect and will.  His interest was not in addressing what kind of religious accommodations should or should not be granted (in fact he favors religious liberty), but rather the use of language of conscience.  His fear is that we lose what conscience means by imprecise use of language. 

Elizabeth Sepper addressed the extent to which institutions that are no longer Catholic in their operation or ownership continue to be bound by restrictions on services through contract. Because of contract, institutions affiliated with other faiths and institutional investors devoted to  the  pursuit  of profit assume a  religious  mantle.   The results is that religious identity survives in "zombie  form," while  the  justifications  for  its  existence  (the  affiliation  with  a  religious  body  or  the  religious beliefs of its founders, directors, or employees) no longer hold true.  She sees no value in allowing that perpetuation.

David Craig argues that organizations can claim free exercise protection,  not on the basis of individual's religious belief, but on the basis of an integrated religious mission.  He suggests three ways of mission integrity:  (1) Associational buy-in test: employees and customers demonstrably affirm corporate religious mission, e.g. employee training, commercial advertising.  (2) Worker welfare: do employees holistically benefit from corporate religious mission e.g. through compensation, benefits.  (3) Public service test: does corp advance public interests through its acts consistent with its religious mission?  Based on how fully Catholic hospitals implement respect for life throughout theeir practices, he would provide accommodation to Catholic hospitals, but not to Hobby Lobby.

May 8, 2015 in Stabile, Susan | Permalink

Legal Protections for Religion in the Health Care Context

The Petrie-Flom Conference on Law, Religion and Medicine opened this morning with a plenary address by Doug Laycock, who suggested that the Supreme Court's decision in Hobby Lobby has been greatly exaggerated by both the winners and the losers.  He views the decision as a narrow one, given its basis on the fact that the government already had established a means to address providing contraception to employers of religious organizations and also suggested that the extension of RFRA to businesses did nothing new. (Among other things, he discussed the debates surrounding the failed Nadler amendment to RFFA, which suggested all sides thought businesses were covered.)

Following the plenary address, the first panel was titled Opening the Conversation: Testing the Scope of Legal Protections for Religions in the Health Care Context and featured papers by Leslie Griffin and Sam Levine.

Griffin believes that medicine and religion have different goals and that too much of medicine today is based on religion rather than health, identifying as problems in her view the growth of conscience clauses, what she calls an exemption regime, and the substantive content of much of health law.  Her claim is that the discussions we have would be different if our starting point was health and medicine rather than religion.  What exactly that means and how the discussions would be different was not apparent to me from her talk.

Levine's talk addressed the Supreme Court's "hands-off" approach to religion, suggesting that there are four related by conceptually distinct forms of inquiry.  First, the sincerity of religious claim.  Courts do have authority and obligation to evaluate whether an individual is sincerely asserting its religious claim.  While difficult at times to assess, one cannot clam a religious right absent sincerity of the religious claim.  Second, is the metaphysical truth of religious claim.  This is where courts have and should take a hands off approach. Third, as a corollary, courts have likewise refused to consider consistency or accuracy of claim.  Courts should not look at the views or co-religionists or even the consistency of the claimant's actions.  Fourth, review of the law;s effect on religions.  Courts do evaluate that and RFRA requires it.  What Levine thinks is less clear is whether the court has to defer to the religious adherent's claim of the extent to which the law burdens religion.  

May 8, 2015 in Stabile, Susan | Permalink

"Silence" is coming . . .

Here's an update on the Scorcese production of Endo's "Silence" one of my -- HT Michael Perry! -- favorite novels.  

May 8, 2015 in Garnett, Rick | Permalink

Rights and Accommodations

Thanks to Susan for blogging about the conference she is attending. I'm sure it will be a very interesting and diverse set of presentations.

I did have one question about what Susan reported as one of EJ Dionne's "provocations." It's the one wherein Dionne distinguishes between "rights" and "accommodations" and "what we are trying to do in a pluralist society, i.e. find ways to accommodate conflicting interests," without "constitutionaliz[ing]" them.

I assume that the focus of the program Susan attends is on the sorts of questions that tend to fall into the "free exercise of religion" basket. And I quite agree that it would be nice not to have to constitutionalize so much, to have so many "rights." It would be far more socially attractive voluntarily to undertake a few more self-imposed burdens of civic tolerance. Unfortunately, that battle has been lost for quite some time with respect to the Establishment Clause, beginning circa 1947 and continuing right on through the 20th century, so much so that many commentators just think of the Court's current, heavily constitutionalized Establishment Clause as the perennial state of affairs. Yet it would be unfortunate in a discussion about "rights" and "accommodations" to lose sight of the other side of the religion clause coin. Perhaps free exercise is simply catching up.

May 8, 2015 in DeGirolami, Marc | Permalink

Thursday, May 7, 2015

What is Caesar's and What is God's?

The 2015 Harvard Petrie Flom Center's Annual Conference on Law, Religion, and Health and America kicked off this evening with a pre-conference program titled After Hobby Lobby; What is Caesar's, What is God's?.  The panelists for the program were E.J. Dionne of the Washington Post, Diane Moore, of the Harvard Divinity School, Professor Charles Fried from Harvard Law School and Frank Wolf, a retired member of the U.S. House of Representatives.

E.J. Dionne kicked things off with what he described as several provocations.  The first was his concern with what he termed the inflated scare language in the religious liberty debate, that is language the conflates challenges to religious liberty with religious persecution suffered by people in the world who are being killed for their faith.  In his words, having to bake a cake or provide flowers does not have the same urgency as being beheaded for one's faith.  His fear is that our religious liberty arguments are becoming so shrill that we forget that there are forms of persecution in the world that are more severe.  (This is a concern that resonates with me; see my Gianella lecture at Villanova last year, which you can read here.)

His second provocation was that we need to think  more about the distinction between religious accommodation and religious rights.  His concern is that there may be occasions when introducing rights language early on in the debate misses what are trying to do in a pluralist society, i.e, find ways to accommodate conflicting interests.  There may be reason to accommodate the interests of religious groups because of their social contributions or other reasons even if one does not believe they have a constitutional right to such protection.  His worry is that we may too quickly constitutionalize these questions rather than engage in what should be a  political conversation.

He went on in his remarks to talks more specifically about Hobby Lobby, which was also the focus of several of the other speakers.  I found Charles Fried's discussion of the evolution of the Supreme Court's jurisprudence on what we understand the religion clause to protect to be particularly interesting (and if I wasn't so tired I might more about that).  

The next two days promise to be an interesting array of papers and I will post more tomorrow.


May 7, 2015 in Stabile, Susan | Permalink

Epstein on Fathers and "Parenting"

Interesting and usefully contrarian observations from the essayist Joseph Epstein about the relationship of fathers and children in past, "pre-psychological" generations and how psychological-age fatherhood (following in the train of its female counterpart) now is involved in a rather culturally specific activity or project of "parenting." Not all of what Epstein describes as long-lost is to be regretted. But this bit was stimulating:

I have a suspicion that this cultural change began with the entrée into the language of the word parenting. I don’t know the exact year that the word parenting came into vogue, but my guess is that it arrived around the same time as the new full-court press, boots-on-the-ground-with-heavy-air-support notion of being a parent. To be a parent is a role; parenting implies a job. It is one thing to be a parent, quite another to parent. “Parenting (or child rearing) is the process of promoting and supporting the physical, emotional, social, and intellectual development of a child from infancy to adulthood. Parenting refers to the aspects of raising a child aside from the biological relationship,” according to the opening sentence of the Wikipedia entry on the subjectRead further down and you will find dreary paragraphs on “parenting styles,” “parenting tools,” “parenting across the lifespan,” and more, alas, altogether too much more.

Under the regime of parenting, raising children became a top priority, an occupation before which all else must yield. The status of children inflated greatly. Much forethought went into giving children those piss-elegant names still turning up everywhere: all those Brandys and Brandons and Bradys; Hunters, Taylors, and Tylers; Coopers, Porters, and Madisons; Britannys, Tiffanys, and Kimberlys; and the rest. Deep thought, long-term plans, and much energy goes into seeing to it that they get into the right colleges. (“Tufts somehow feels right for Ashley, Oberlin for Belmont.”) What happens when they don’t get into the right college, when they in effect fail to repay all the devout attention and care lavished upon them, is another, sadder story.

I began by talking about “fashions” in fatherhood, but I wonder if fashions is the right word. I wonder whether cultural imperatives doesn’t cover the case more precisely....

The culture of the current day calls for fathers to put in quite as much time with their children as mothers once did. In part this is owing to the fact that more and more women with children either need or want to work, and in part because, somehow, it only seems fair. Today if a father does not attend the games of his children, he is delinquent. If a father fails to take a strong hand in his children’s education, he is deficient. If a father does not do all in his power to build up his children’s self-esteem—“Good job, Ian”—he is damnable. If a father does not regularly hug and kiss his children and end all phone calls with “love ya,” he is a monster. These are the dictates of the culture on—shall we call it?—“fathering” in our day, and it is not easy to go up against them; as an active grandparent, I, at least, did not find it easy.

Cultural shifts do not arrive without reason. Kids today, it is with some justice argued, cannot, owing to crime in all big cities, be left alone. They need to be more carefully protected than when I, or even my sons, were children. Getting into decent colleges and secondary and primary schools and, yes, even preschools is not the automatic business it once was. The competition for what is felt to be the best in this realm is furious; thought (and often serious sums of money) must go into it. Children are deemed more vulnerable than was once believed. How else to explain all those learning disabilities, attention deficits, and other confidence-shattering psychological conditions that seem to turn up with such regularity and in such abundance? The world generally has become a more frightening place, and any father with the least conscience will interpose himself between it and his children for as long as possible. One can no longer be merely a parent; one must be—up and at ’em— relentlessly parenting.

As a university teacher I have encountered students brought up under this new, full-time attention regimen. On occasion, I have been amused by the unearned confidence of some of these kids. Part of me—the part Flip Wilson’s debbil controls— used to yearn to let the air out of their self-esteem. How many wretchedly executed student papers have I read, at the bottom of which I wished to write, “F. Too much love in the home.”

Will all the attention now showered on the current generation of children make them smarter, more secure, finer, and nobler human beings? That remains, as the journalists used to say about the outcomes of Latin American revolutions, to be seen. Have the obligations of fathering made men’s lives richer, or have they instead loaded men down with a feeling of hopeless inadequacy, for no man can hope to be the ideal father required in our day? How many men, one wonders, after a weekend of heavily programmed, rigidly regimented fun fathering with the kids, can’t wait to return to the simpler but genuine pleasures of work? Only when the cultural imperative of parenting changes yet again are we likely to know.

May 7, 2015 in DeGirolami, Marc | Permalink