Friday, June 26, 2015
From Justice Roberts' dissenting opinion in today's marriage ruling:
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Saturday, May 23, 2015
Today is a day many people have been waiting for a very long time: the beatification of Oscar Romero, one of my great heroes.
Romero's path to sainthood, however, has not been without controversy. There are some who during his life viewed him (and some who continue to view him) as a Marxist or, in one commentator's words "a poster boy for the left-wing cause."
I think there is no better answer to the charge of Marxism than the words Romero spoke during his homily on the feast of the Ascension in 1977, three years before his assassination. The message of the bishops in the Documents of the Second Vatican Council, he preached
condemns this false understanding of tradition that wants to present the Church as simply spiritual - a Church of sacraments and prayers but with no social commitment or commitment to history. We would betray our mission as pastors, if we were to reduce evangelization to mere practices of individual piety and the participation in non-incarnated sacraments. The Pope says: Evangelization would not be complete if it did not take account of the unceasing interplay of the Gospel and of man's concrete life, both personal and social (Evangelii Nuntiandi, 29). My bothers and sisters, let us not place our faith in some corner and reduce it to some private place and then live in public as though we had no faith. The Council said that this divorce between faith and our private life is one of the great errors of our time (cf. Gaudium et Spes, 43). So great is this error that in the name of this error, the Church is called subversive because she wants to lead Christians to a faith commitment in their concrete life. My dear Catholics, let us study this right doctrine and wisdom of the Church. Then we will understand that priests and Christians who live their Christian commitment in the world are far from being communists or Marxists or subversives.
Blessed Oscar Romero, pray for us!
[cross-posted from Creo en Dios!
Monday, May 18, 2015
Yesterday I moderated a program at Our Lady of Lourdes on Race and Justice, the inaugural program in Lourdes' new Salt and Light Series. We had a panel of three speakers, each of whom spoke for about ten minutes, after which we had time for dialogue and question and answer. The three speakers were Archbishop Emeritus Harry Flynn, Nekima Levy-Pounds (my colleague at UST Law School and the newly elected President of the Minneapolis NAACP), and Tom Johnson former county attorney and former president of the Council of Crime and Justice. It was a moving and sobering event.
One of the things that was mentioned was the pastoral letter on racisim Archbishop Flynn released in 2003, In God's Image. Archbishop Flynn talked about the circumstances of his issuing it and the reaction (positive and negative) he received, and Professor Levy-Pounds noted that she assignes the pastoral letter (along with Martin Luther King's Letter from a Birmingham Jail) to her students each semester.
When I went back to look at the pastoral letter again when I got home yesterday afternoon, I realized how that the words the former Archbishop used to introduce his letter are as timely and important today - perhaps more so - than they were when he wrote them in 20o3.
Here is the Preface to In God's Image:
Brothers and Sisters in Christ,
In the Hebrew Scriptures the prophet Micah gives us a simple but very challenging formula for holiness. He writes,
“… This is what Yahweh asks of you: Only this, to act justly, to love tenderly, and to walk humbly with your God.” (Micah 6:8)
This is the spirit that I hope all of you will bring to the discussion of racism and racial justice in our church and in our society. We cannot be a church that is true to the demands of the Gospel if we do not act justly, if we do not act to root out racism in the structures of our society and our church. And we cannot achieve personal holiness if we do not love tenderly, if we do not love and respect all human beings, regardless of their race, language, or ethnic heritage.
Only if we do these things can we expect to walk humbly with our God. For our God is a God of love and justice, a God who made all of us in His image. Racism is a denial of that fact. It is an offense against God. I realize that the subject of race can be a very difficult one for all of us. Yet I am convinced that we must address it with honesty and courage. For it remains a significant and sinful reality in our midst.
I am issuing this pastoral letter as an invitation to discussion and dialogue. I hope all of you will accept this invitation by taking part in discussions in your parish and community. By engaging in such a dialogue, we can all enhance our understanding of the role that race plays in our lives and we can join together in working to combat racism in all its forms.
Thank you for your commitment to the values of human dignity and racial justice.
God bless you,
Most Reverend Harry J. Flynn
You can read the pastoral letter in its entirety here, and I encourage you to do so.
[Cross-posted from Creo en Dios!]
Thursday, May 14, 2015
Last week I wrote a number of posts about presentations at the Harvard Petrie-Flom conference on Law, Religion and Medicine. Soon, videos of all of the panels from that conference will be available. As of now, you can watch the talks given at the pre-conference program last Thursday evening, After Hobby Lobby, What is Caesar's and What is God's. The link is here.
Thanks to Lisa for her sharing of Mary Rice Hasson's response to Frank Bruni's recent New York Times piece about Catholicism and women. As I read Hasson's response, along with that of Helen Alvare (reported here, along with the Bruni piece), it might be worth a reminder that "Catholic Women" is not a monolithic group. Whether it is Bruni or Hasson or Alvare or anyone else- each speaks for some Catholic women. (Helen does acknowledge in her response that "no one woman is sufficient to be the voice for all.")
There is no question that there are a significant number of Catholic women who (in Hasson's words) "love the Church, embrace her teachings, and know that their gifts are deeply important to the Church." But there are also a significant number who do not and who feel marginalized and disconnected and undervalued by their Church because of their gender. And so, while I don't disagree with criticism of the Bruni piece, we do need to remember that there is a tremendous range of views of Catholic women about the Church, its teachings and how those teachings play out in their world.
Saturday, May 9, 2015
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.
Friday, May 8, 2015
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.
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.
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.
Thursday, May 7, 2015
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.