Tuesday, January 16, 2018
A recent study by the Guttmacher Institute has found no evidence of change in women's contraceptive use as a result of the Affordable Care Act. The proportion of women with insurance coverage for contraceptives increased, but not the use or mixture of contraceptive methods.
This is unsurprising for anyone familiar with the weaknesses of the evidence for the government's repeated assertions in litigation that the contraceptives mandate actually advanced a compelling interest in protecting women's health.
After all, the mandate itself was the product of an Institute of Medicine group that deliberately chose not to scrutinize the relationship between insurance coverage and contraceptive use (as the opinion of the dissenting doctor explained). (Here's a blog post from almost five years ago in which I support this point in more detail, with links to the primary documents.) The government agencies nevertheless adopted the IOM's recommendation without any independent consideration of this relationship. And if the recent study is accurate, it turns out the government's litigators have been wrong thus far to insist that the mandate actually advances a compelling government interest in women's health.
January 16, 2018 | Permalink
Monday, January 15, 2018
I enjoyed speaking on this recent Federalist Society Teleforum, "Is the 'Parsonage Allowance' Allowed?" We discussed the tax-code provision permitting ministers to exclude from their gross income a housing allowance provided by their employer, up to the fair rental value of the home. Last October, Judge Crabb (W.D. Wis.) invalidated the provision as a violation of the Establishment Clause. If that ruling stands on appeal, the cost to religious organizations around the nation--the cost of making up for the new tax liability by paying additional salary--would likely exceed $1 billion yearly. That estimate, along with very useful insight on the provision and how organizations might respond to its invalidation, was provided by my teleforum co-speakers, John van Drunen and Michael Martin of the Evangelical Council on Financial Accountability (ECFA--an organization that does great work encouraging sound financial practices by religious nonprofits).
Here's the concluding bit from my own remarks (Download Housing Allowance - FedSoc Teleforum 2018-01-12 (delivered), which argued that the housing-allowance exclusion is quite defensible as constitutional but faces risks on appeal:
Ultimately, the result in this matter depends on the court’s attitude toward provisions that specifically accommodate religion. The exclusion will be upheld if the court takes a deferential approach and allows the government leeway as long as it’s reasonably promoting valid church-state concerns like denominational equality and nonentanglement in religious questions, and is not directly imposing a significant burden on anyone else. I believe that is the correct approach—the most consistent with the text, tradition, and precedents—especially with respect to treatment of ministers. But there are certainly judges who view it as presumptively unfair to exempt religion when arguably comparable nonreligious activities are not exempt, and they are likely to view the justifications for doing so here as insufficient.
Our religious liberty clinic at St. Thomas defended the provision at length in an amicus brief in a 2014 appeal, where the Seventh Circuit dismissed the challenge to the provision for lack of standing.
For St. Augustine, the City of God on pilgrimage in this world is the only common good united to the highest good, and the Catholic Church gives us the “true attachment” (vera religio) to it. So it is only in communion with the Catholic Church that individuals, communities, peoples, cities, nations, can be properly “attached.” However, Augustine’s integralism also provides a realistic measure for the Catholic to judge regimes as more or less ideal, on a scale. In Augustine’s “alternative” definition of a republic, he argues that Catholics can and will need to use the relative peace of cities whose orders will be judged better or worse according to their “common objects of love.” That is, in non-ideal regimes, Augustine encourages the integralist to help move his neighbours from low to high, from loving vice to loving virtue, from self-centred order to God-centered order. . . .
I'm (still) sympathetic to the view that American-style constitutional democracy - correctly understood and practiced -- is ("relative[ly]" speaking) a more-ideal non-ideal regime. But, of course . . . I could be wrong!
Like a lot of people in the social-media-sphere these days, I'm reading and thinking about "liberalism", democracy, Catholicism, political theology, statism, integralism, pluralism, . . . papal kidnappings, etc. I hope other MOJ-ers will weigh in on some of the various posts and essays that have been attracting a lot of attention.
This particular piece, "The Metaphysics of Democracy," by Thomas Joseph White, O.P., in the February issue of First Things, was of particular interest to me this weekend. Here's a bit:
Liberalism began as a political project that sought to curtail the role of religion in public life. Religious impulses haven’t proven easy to expel, however, even in secular societies. Contemporary secular liberalism aspires to be a universal project that supplants traditional religion and relegates it to the private sphere. Paradoxically, this process frustrates the spiritual desires of many modern secular people, who are unsatisfied with thin consumerism and wish to participate in something greater than themselves. Their mounting rejection of the liberal project has precipitated a crisis, one felt most acutely in the political realm. It has taken the form of a resurgent nationalism, an inchoate response to the suppression of faith that is inadequate and perhaps dangerous. We need to address the weakness of liberal modernity differently, which means metaphysically. No doubt, an appeal to metaphysics strikes many as strangely abstract and inconsequential. Politics is the realm of action, and people want to see church leaders, politicians, lawyers, and columnists fighting for religious causes. One can sympathize with this instinct, but it ignores the deeper problem. The dispute over metaphysics was the concrete issue from the beginning. It always has been. . . .
I have tended to the view -- and, certainly, I might well have been mistaken -- that "liberalism" can (and should) be regarded and engaged as something (relatively) thin and procedural -- as involving "articles of peace, not of faith." Many smart people -- Legutko, Deneen, Vermeule, etc. -- are calling this view into question. We'll see . . . .
Friday, January 12, 2018
I always learn from Prof. Perry Dane's work. Here is a recent paper his, posted at SSRN:
One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church. With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “The State is not in the Church, but the Church is in the State” – does not.
Perry's use of the term "encounter" reminds me of my former colleague and mentor Bob Rodes's use of "nexus" and "dialogue" in the church-state context. I wrote a short paper about Rodes's approach here:
The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.
How, then, should we understand church-state separation? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration.
This essay is an appreciation, interpretation, and application of Professor Rodes's church-state work. In particular, it contrasts the church-state nexus that he has explored and explained with Jefferson's misleading but influential wall metaphor. After identifying and discussing a few of the more salient features of this nexus, it closes with some thoughts about how the leading themes in Rodes's law-and-religion writing can help us better understand and negotiate one of today's most pressing religious freedom problems.
Wednesday, January 10, 2018
Over at Public Discourse, here are Profs. Christopher Tollefsen and Michael Pakaluk on "the philosophical case against capital punishment." For me, for what it's worth, this essay -- now 17 years old -- by Avery Cardinal Dulles has always been helpful on the subject.
Tuesday, January 9, 2018
Pope Francis's annual address to diplomats is getting a fair bit of coverage (here, e.g., is America's story) and, in many instances (here is an example), the coverage is framing the talk in terms of its relevance to President Trump. Here is John Allen's as-per-usual indispensable coverage.
For my own part, I was struck by the emphasis on "integral human development" and the (both implicit and explicit) recognition that (as many of us have written over the years here at MOJ) at the heart of any Catholic approach to law, policy, and politics is a proposal of "moral anthropology."
For true peace can only come about on the basis of a vision of human beings capable of promoting an integral development respectful of their transcendent dignity. . . .
One enemy of peace is a “reductive vision” of the human person, which opens the way to the spread of injustice, social inequality and corruption. . . .
As Allen noted, the Pope re-expressed his concern that the language and practice of "human rights" can, sometimes, be put to use as a kind of "ideological colonization":
From the beginning, Pope Francis has been a notoriously difficult figure to classify by the usual Western standards of left v. right - seemingly quite progressive on many matters, and yet stubbornly traditional on others. . . .
Francis also warned of what he described as “debatable notions of human rights” which gathered force in the wake of the social upheavals of the 1960s, which, he said, risk becoming a form of “ideological colonization.”
“Debatable notions of human rights have been advanced that are at odds with the culture of many countries,” the pope said. “The latter feel that they are not respected in their social and cultural traditions, and instead neglected with regard to the real needs they have to face.”
“Somewhat paradoxically, there is a risk that, in the very name of human rights, we will see the rise of modern forms of ideological colonization by the stronger and the wealthier, to the detriment of the poorer and the most vulnerable,” Francis said.
Saturday, January 6, 2018
I binge-watched the recent HBO / BBC series, "Gunpowder," and enjoyed it. There are some liberties taken in terms of history but I'll confess to being (pleasantly) surprised that the "Catholic side" of those times comes off as well as it does. There are some pretty graphic torture scenes (drawing-and-quartering, burning (in Spain), and peine forte e dure -- in a scene borrowed anachronistically from the martyrdom of Margaret Clitherow). The main characters (Cecil, Vaux, Garnet, Catesby) are well-cast.
Friday, January 5, 2018
The Fourth Circuit ruled today that the city of Baltimore cannot compel a pregnancy-care center to post signs in its waiting room stating that it does not perform or refer for abortions. The Center is a Christian non-profit operating in space provided rent-free by a Catholic parish. It argued that the ordinance forced it to raise, in the sensitive context of "its own waiting room," the topic--abortion--that is "at odds with its foundational beliefs and with the principles of those who have given their working lives to it." The opinion, by Judge Wilkinson, rejects the city's arguments that all of the Center's speech is commercial speech and professional speech, and thus deserving lesser First Amendment protection, simply because it provides (free) ultrasounds, counseling, and other services. The court then concludes that the ordinance is not narrowly tailored:
Baltimore seeks to combat deceptive advertising and consequent delays in abortion services. In that respect the ordinance is quite overinclusive. It applies to pregnancy centers without regard to whether their advertising is misleading, or indeed whether they advertise at all. [T]he direct application of laws prohibiting misleading advertising might provide a better fit for the problems about which the City is concerned.
There are, in short, too many problems with the City’s case. The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand.
Becket, who has litigated the case very well as always, has a page of resources on it. The St. Thomas Religious Liberty Appellate Clinic, which I supervise, filed an amicus brief supporting the clinic on behalf of the Democrats for Life and the Christian Legal Society. We argued, among other things, that to call the speech here "commercial," when the Center charges no money for its services and the law does not target any advertising itself,
would expand that category to sweep in not just the Center, but a wide range of organizations and ministries that provide free services to those in need. This effect would follow, first, from the City’s arguments that the Center “proposes a commercial transaction” and has an “economic motivation.” The City argues that the Center fits within those categories because, although it offers services for free, the services are “commercially valuable”—that is, they could be provided for money. But nonprofit or religious soup kitchens, pastoral counseling services, immigrant/refugee ministries, and countless other organizations all offer free services that could be provided for money. By the City’s rationale, all of these organizations could be subjected to disclosure mandates and other intrusive regulation.
The Fourth Circuit distinguished the case from the NIFLA case currently before the Supreme Court: "In [NIFLA], the court applied the professional speech doctrine [reducing the level of speech protection] only to compelled disclosures in clinics licensed by the state. The Ninth Circuit did not reach the question of whether the doctrine applied to disclosures required in unlicensed pregnancy centers like the one at issue here."