Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
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Wednesday, August 3, 2011

Minimalist Exemptions and Religious Progressives

Rick's posts about contraception coverage and the healthcare law point to the calls by, among others, Steve Schneck and Michael Sean Winters for a much broader exemption for "religious employers" than the exceedingly narrow one that the Obama HHS Department is proposing.  The proposed exemption, drawn from state laws mandating employer insurance coverage of contraception, only treats an organization as a "religious employer" eligible for accommodation if the organization, among other things, "has the inculcation of religious values as its purpose" and "primarily serves persons who share its religious tenets" (each prong must be satisfied--including two additional ones).  As Rick and others have pointed out (and I argued here), this reflects an indefensibly narrow vision of religion as an insular activity of preaching to members.  It leaves unprotected virtually all social services, certainly those that do not involve explicit preaching or attempts to convert.  (Ironic, since often opponents of religious social services complain that those entities mix in proselytization with the help they provide.)

I'm particularly interested in the attitude of religious liberals or progressives (Christian/Jew, Catholic/Protestant, etc.) toward such a minimalist approach to religious conscience.  As a political matter, they may well be the crucial group for preserving the religious liberty of traditionalist groups when it's under assault.  (I realize that the Catholic Church itself often confounds neat categories of "traditionalist" and "progressive," but many Catholics, as well as other religious believers, end up sorting into these outlooks.)  Traditionalists will often have insufficient votes themselves, and they  likely will get little sympathy from secular liberals who oppose both their moral position and the religious faith from which it ultimately stems.  But religious liberals, although they mostly disagree with traditionalists on contraception or (say) same-sex marriage, may at least--should at least--sympathize with the sense of devotion and call that leads traditionalists to their positions. 

And religious liberals should be deeply disturbed by the definition of "religious employer" that has been peddled in the contraception-funding context.  The definition conflicts with a common, even central, tenet of progressive Christianity: that the message of Jesus is not (or not only) about otherworldly salvation, but is about serving the needy with the love of Christ, often without explicitly preaching, proselytizing, or (in the words of the narrow exemption) "inculat[ing] religious values."  Similarly, liberal Christians frequently affirm the provision of service ecumenically to all persons, again without seeking to get them to "confess Christ" or join the church--in the exemption's words, "share its tenets"--in order to be recipients of Christian love.  If a prominent Christian fundamentalist said that a liberal social service was not Christian or religious because it didn't explicitly preach or try to convert people, religious liberals would fire back.  They should fire back about this exemption language too.  Even though the narrow exemption may coincide with the beliefs of many religious progressives on contraception, it rests on premises that utterly undermine religious mission as they understand it.


UPDATE:  I should note that a variety of scholars from varying positions on the "progressive/traditional" spectrum have written in criticism of the narrowness of the exemption, including Susan Stabile, Rick, etc.  I was referring mostly to mainline/liberal religious denominations and activist groups who should criticize it as well. 



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Well said Tom. I agree that religious liberal groups ought to be agreeing with the position you have taken. I would be interested in how they would justify a contrary position.

Posted by: Steven Shiffrin | Aug 3, 2011 4:05:10 PM

Tom: I have not followed closely the HHS reg or the debate about possible exemptions. But from your description of it, the proposed exemption is not dramatically different from other institutional exemptions in many contexts, where the state is reluctant to grant the exemption with respect to functions that are more "outwardly" directed, including of course commercial functions, as well as other functions -- including schools and social services -- that are often replacements for functions that the state itself otherwise would be performing.

I think it's not accurate to say that in such cases the scope of the exemption "reflects an indefensibly narrow vision of religion as an insular activity of preaching to members." It does nothing of the sort. I'm confident that those crafting this exmeption, and those like it, would gladly concede that the services are being provided for religious reasons, as part of the organization's religious mission. The reason it is not covered by the exemptions is not that the function is insufficiently religiously motivated, or insufficiently central to the religious mission of the organization, but instead that it is, *in addition,* a function with much greater public implications: the organization serves a public set of beneficiaries, in an important sense competes with nonreligious providers in a particular market, provides functions that would otherwise be the responsibility of the state itself, etc. When the operation is purely internal, by contrast, the state's interests are diminished, and therefore the exemption is more appropriate and of less concern.

A similar issue is arising, in a slightly different context (constitutional immunity from suit rather than the ideal scope of a statutory exemption) in the Hosanna-Tabor case. Doug's brief, understandably, focuses on how Perich's job is of religious significance to the church. The briefs of Perich and the SG do not take issue with the religious significance of Perich's job -- they argue, instead, that the fact of religious significance to the church is not determinative; and Perich's brief, in particular, stresses that Perich was teaching secular subjects in a commercial setting, to a student body culled from the public that would otherwise be taught those subjects by the state itself. (I'm grossly oversimplifying all the briefs here -- but safe to say these dueling themes are prominent.)

The issue, in other words, is not exclusively about "religious conscience." (If conscience were all that were at issue, after all, why limit the exmeption to religious conscience? What about the sincere but secular conscientious objections of commerical employers?) It is also, perhaps more, about the public nature of the activities that are the product of that conscience.

None of which, again, is to say anything definitive about how HHS should define the exemption -- I'd need to know a lot more about the various considerations to speak intelligently about that. My point is simply that there isn't likely to be any dispute or misunderstanding about religious conscience or motivation.

Posted by: Marty Lederman | Aug 3, 2011 5:20:34 PM

Marty, I take your point about how the narrow exemption could be characterized. However, to begin with, the leading exemptions here have not been drafted the way you describe. They have not said, "Some religious employers are exempted, if they meet all these criteria." Instead, New York and California, the leading states, have said "Religious employers are exempted, and a religious employer is one that meets all these criteria." I see it as an effort to use drafting to try to gain a bit of advantage in countering the claim that the exemption improperly discriminates among religious organizations. If drafters choose that route, they can be criticized for the definition of "religious" that they are writing into the statute books. Admittedly, HHS's proposal is somewhat more honest--its preface describes it as an exemption for "certain religious employers"--but then the operative language proceeds to define "religious employer" itself in the same narrow way.

Even were the exemptions written more honestly, however, their terms are still (I believe) deficient, reflecting a very weak valuing of religiously motivated service activity--and religious progressives should say so. What strong interest, sufficient to risk eliminating or reducing the service work of Catholic Charities and other organizations, is accomplished by imposing all four of these criteria? I'll grant that the criterion of employing only Catholics is connected to the argument that non-Catholic employees will not share the belief against contraception and should be insured--although there's still a lot to be said for exemption in that case. But even if Catholic Charities were to hire only Catholics, it would still be subject to the rule, simply because it provides religiously-motivated service rather than directly "inculcat[ing] religious values," and (independently) because it serves non-Catholics. The connections between these criteria and government interests are far more attenuated. If the interest is (in your words) that the organization "competes with nonreligious providers in a particular market," it's hard for me to believe that the marginal cost savings of this one kind of coverage will give Catholic Charities a meaningful advantage--enough of an advantage to outweigh the claim of religious conscience unless one values that claim very weakly (which is my point). Catholic Charities may have disadvantages in the employment market from its unwillingness to insure contraception. And if the interest is simply in making sure that religious services follow all the rules on anything that might be called "public," that's a very generalized interest that, again (in my view), would not override a particularized claim of religious conscience unless the latter is valued very weakly.

In the calculus of arguments for the narrow exemption, it seems to me, some of the work is being done by the idea that service without worship or proselytization is not really at the core of religion. Whether proponents of the narrow exemption believe that idea or not, I think they are trading on it as part of their approach. Religious progressives should rebel against it.

Finally, I can't avoid commenting on the line that social services "are often replacements for functions that the state itself otherwise would be performing." This is historically anachronistic: religious institutions provided social services long before the state became involved in any meaningful way. It also reflects a vision closer to current European arrangements than to America's ongoing traditions. In America private institutions have always been fundamental to social-service provision, both in theory and in percentage of services; and although the government has taken a much greater direct role in recent decades--for defensible reasons--it would be a major change to conceive of private/religious institutions as merely the filler in places where for some reason the government cannot reach.

As someone who wants to see our nation do a lot more to help the poor, I think the reality is that the only way this will happen in America is if a significant component remains in the private civil sector, with appropriate government cooperation and facilitation, rather than through direct government provision. (That's a pragmatic argument, although I also think there are strong principled arguments based in political theory.) The current budget fights should remind us how difficult it is to get greater social commitment to help those in need. Consider the added difficulties of trying to get buy-in for treating government as the dominant provider of that help and private organizations as just a "replacement."

Posted by: Tom Berg | Aug 4, 2011 1:08:28 PM

Steve, I can see a couple of reasons why religious progressive organizations wouldn't speak out against contraception-funding requirements. One is simply opposition to the Catholic position (the historic problem in the First Amendment--why support freedom for someone you think is wrong?).

A second reason, perhaps more distinctive to religious progressives, may be that their sense of hospitality toward learning from the modern secular world, as a means of interpreting faith, leads them to be more hospitable to government regulation that challenges longstanding ("outmoded"?) components of the faith. I think that's an important and interesting dynamic, but I'd argue that religious progressives should not give it much normative weight, for they view (or should view) many trends in the modern world--for example, widespread greed, individualism, environmental wasting--as inconsistent with progressive faith. And that should bolster their sympathy for religious traditionalists who have the same kind of problem.

Posted by: Tom Berg | Aug 4, 2011 1:28:20 PM

Tom: Thanks for the reply. Most of what you've written goes to the merits, about which (a bit) more below. But all I was addressing was your concern that (as you now put it) "some of the work is being done by the idea that service without worship or proselytization is not really at the core of religion. Whether proponents of the narrow exemption believe that idea or not, I think they are trading on it as part of their approach."

To be sure, there are some who might believe that such service is not at the "core" of religion, in the same way that prayer and proselytizing are. But I'm not aware of anyone, including many who favor very narrow exemptions, who would adopt -- or "trade upon" -- the idea that such service is not often a very central and important component of religious practice. (Indeed, that's even more the case today, when so many have turned from prayer and belief and ritual to good works as the most important component of their own religious practice and understanding.)

As for the merits, I seem to recall an exchange with you and/or Rick at the time of the California or New York decision, but can't find it now -- don't recall whether it was on the web. My recollection, however, is that I argued that the 2d through 4th of the four California criteria are quite defensible, and that there was some consensus among us, at least, on the second (primarily employs persons who share the organization's religious tenets) and fourth (is a nonprofit). The first criterion -- the organization's purpose must be inculcation of religious values -- is somewhat harder to understand; but I wondered whether it was doing much work.

So please allow me to ask a concrete question of you and Rick: In your view, is the problem with the HHS criteria mostly the first criterion ? Are the other three criteria ok in your view -- or at least 2 and 4? If so, are there a good number of religious social service organizations who would satisfy 2-4 but not 1? That is to say: What's the real crux of the dispute here?

Posted by: Marty Lederman | Aug 4, 2011 3:56:35 PM

I appreciate that religious progressives are open to learning from the modern world and that may (does) lead them to the view that the Catholic leaders's position on contraception is wrong, but I do not see how a religious progressive can say that free exercise should be available only to those religions with progressive views or to those views that they personally agree with. Progressives have traditionally thought that the Witnesses and the Quakers should be protected when they definitely did not agree with the former and were divided over the latter.
It may be that some religious progressives are guilty of this selective favoring of free exercise, but in my view the position is no more progressive than the view that free speech should be available only to those who share my views.

Posted by: Steve Shiffrin | Aug 4, 2011 5:34:47 PM

Steve: Which "religious progressives" "say that free exercise should be available only to those religions with progressive views or to those views that they personally agree with"? Surely not those at HHS, who are voluntarily granting a religious exemption to groups with views about contraception that presumably are far removed from the views of most HHS officials.

Posted by: Marty Lederman | Aug 4, 2011 6:11:32 PM

Thanks, Marty. I do hear the sentiment "Well, nobody's stopping X from following the religion in the church or worship, so what's the religious-freedom problem?" You certainly hear that about possible conflicts with gay marriage: nobody will be forced to bless a marriage, so no issue. In any event, it's small comfort if a narrow-exemption defender concedes that social-service restrictions implicate religious freedom concerns but then finds that freedom outweighed (even for a legislative exemption) by whatever interest, however abstract or attenuated, the pro-regulation side asserts.

On the merits, I am particularly disturbed by criteria 1 (primarily inculcates religious values) and 3 (primarily serves its own members), because they cut so widely into religious social services for such questionable interests: presumably, preventing some minimal asserted market advantage, or making a symbolic point about that all provision of social service is "public" and subject to regulation. As I wrote before, I think criterion 2 (primarily employs persons of the faith) is more defensible--at least there's a connection between employing non-adherents and providing them insurance on matters where they disagree with the church--but I still think it's unwise and unwarranted to tell the religious organization that once it reaches out to others for employees, it loses its ability to follow moral norms including avoiding direct support for what it regards as an evil.

Posted by: Tom Berg | Aug 5, 2011 1:25:40 PM

Thanks, Tom. If 1 and 3 were eliminated, leaving only 2 and 4, what is the class of organizations that would be covered, compared to those who satisfy all four conditions? How many employees would be stripped of contraceptive coverage if such a change were made?

At the end of your post, you suggest again that the principle should be to allow organizations to "avoid[] direct support for what it regards as an evil." Putting aside the very contested notion of what is "direct" support, and why the legallly imposed insurance coverage here would fairly be deemed as "support" by the organization of a sort that violates their religious precepts, my main question is this: If conscience were to be the touchstone, as you suggest, why limit the exemption to *religious* organizations, or to organizations at all? Why not exempt all employers who have a moral obejction to providing such "support"?

Posted by: Marty Lederman | Aug 5, 2011 1:54:58 PM

Marty--On the first question, I think 2 should not be required either; all I'm saying is it's not as gratutious as 1 and 3. I don't know the numbers on employees, but some religious social services help people of all faiths but wish to do it with employees committed to the faith. On your second question, why ever treat religion differently in the law? We do it constantly, both in constitutional rulings (establishment as well as free ex) and in statutes. The reasons include features about religious conscience as a category, and also reasons for government to avoid entanglement with religious questions (questions that it dives into by trying to distinguish those groups that "inculcate values" or don't go beyond the faith). Are you suggesting that all exemptions for religion as a category are unjustified?

Posted by: Tom Berg | Aug 5, 2011 2:24:20 PM

"Are you suggesting that all exemptions for religion as a category are unjustified?"

Hardly. But when it comes to questions of exemptions for certain employers, *if* they are to be based upon moral conscience objections, as you suggest, then I think it's very difficult to justify limiting the exemptions to religious objectors, or to large-sclae organizations, for that matter. If, on the other hand, the exemption regime is designed to account for other concerns, as well -- such as preserving the autonomy of certain institutions that are fairly self-sustaining and insular, or nonentanglement concerns w/r/t the internal organization of a church -- then limiting the exemption to religious organizations perhaps makes more sense, as w/r/t the title VII coreligionists exemption. But in that case, the second through fourth HHS criteria would make a lot of sense, too. (I think we agree that the first criterion is the most difficult to defend -- but I'm not sure it makes much practical difference, i.e., that there are many organizations that satisfy 2-4 but not 1.)

Posted by: Marty Lederman | Aug 5, 2011 4:48:08 PM

The whole debate about contraceptive coverage is weird, just because it's amazing that anyone is so stupid as to think the coverage necessary in the first place. Contraceptives are a small and regular expense that anyone should be able to plan for without the added bureaucracy of an insurance company. Contraceptives don't belong in an "insurance" policy any more than toothpaste and deodorant. Are we going to see federal mandates for dental floss coverage, or perhaps sugarless chewing gum?

Posted by: Anon | Aug 6, 2011 9:57:17 PM