Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 31, 2012

O'Callaghan on "Pentecost and the Mandate"

My friend and colleague, John O'Callaghan (Philosophy) has a guest-post up at America called "Pentecost and the Mandate" that is, I think, really good.  A bit:

  Pentecost reminds us that it is the task of all Christians to leave the rooms in which they huddle in fear of others' thoughts and actions, and despite their failings make manifest the gift that is offered to us all. Today in the United States the freedom to give that gift as the church understands it—a vision of how human life flourishes in caring for the sick, educating the young, feeding the hungry, comforting the dying, and so on—is threatened by those who hold the political and legal power to coerce the lives of citizens and the institutions within which they assemble. The HHS Mandate requires church institutions of any sort, not just Catholic, to act in ways contrary to what they believe is part of that gift they would offer the world. It claims the authority to coerce the lives of Christians precisely as Christians, if they dare to act beyond the walls of their church buildings in concert with and for people who do not share their faith.


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What are the parameters of a religious exemption for the HHS mandate that you think would sufficiently protect religious liberty?

Posted by: WmBrennan | May 31, 2012 1:31:02 PM

Let's separate, first, two questions: (1) is the preventive-services mandate good policy and (2) what exemption should be included in order to (better) protect religious freedom. The answer to the first question, I think, is "no" -- it was made badly, and what it does is, I think, not sensible. But, put that aside. With respect to the second, a big move toward sufficiency would be to define much more broadly the category of religious employers who are exempt (if they want to be!) from the preventive-services mandate.

Posted by: Rick Garnett | May 31, 2012 1:36:40 PM

I am not interested in the first question for present purposes. For the second, well, yeah, but HOW much more broadly?

For example, Notre Dame's lawsuit suggests (but does not say) that an exemption substantially similar to 29 USC 1102(33)(C)'s would be sufficient. Is this suggestion correct by your lights?

(Please note that I am asking this question to you personally and expect that any answer would represent merely your views and not those of Notre Dame or any other person, corporation, entity, yadda yadda yadda)

Posted by: WmBrennan | May 31, 2012 3:16:41 PM

Sorry, correct cite is 29 USC 1002(33)(C), not 1102(33)(C).

Posted by: WmBrennan | May 31, 2012 3:17:34 PM

In my view, the "church plan" language would be an improvement, but *could* still be too narrow, in that (if I remember correctly) it is not entirely clear that it covers so-called "parachurch organizations" -- I'm thinking of World Vision, say. I'd want to talk more with some employee-benefits-law experts, to get a better sense of what's covered.

The new language in Arizona, from HB 2625, has some language that strikes me as promising: "an entity whose articles of incorporation clearly state that it is a religiously motivated organization and whose religious beliefs are central to the organization's operating principles."

(We're talking here only about the "religious employer" exemption, I assume, and not about whether and to what extent some non-religious employers -- say, certain small businesses -- should also be exempt.)

Posted by: Rick Garnett | May 31, 2012 3:30:51 PM


I know you have a part-time job in responding to these posts, but I would be curious to hear your thoughts on whether and to what extent non-religious employers (private companies large and small) should also be exempt.

It seems to me that Christian business owners (and owners of other faiths as well) face a similar moral dilemma in addressing compliance with the mandate. I have not seen anything on this blog or similar media analyze this particular point(though I am aware there are suits that have been filed on behalf of private employers).

Posted by: Matt McGowen | May 31, 2012 9:37:44 PM

Professor Garnett, I am wondering if you or someone on this blog can address the moral dilemma that this administration has created in union with some individual States, when they mandated that every Insurance Company must now provide contraception coverage so that those persons who, for moral or for religiously moral reasons do not want to purchase insurance from an Insurance Company that promotes contraception use, have to choose between providing or purchasing Insurance, or not being insured, even though there is no compelling reason to ban the existence of an Insurance Company that does not provide contraception coverage, to begin with?


Posted by: N.D. | Jun 1, 2012 8:09:44 AM

"We're talking here only about the "religious employer" exemption, I assume, and not about whether and to what extent some non-religious employers -- say, certain small businesses -- should also be exempt."

Actually, I think the extent to which the Church seeks exemptions for institutions and persons who are more remote from core religious institutions is precisely where the really difficult line-drawing problems arise. So -while I have a better understanding of your position now - I still don't have a good grasp of how far you think religious accomodation must go to be sufficient.

The obvious concern for many is that if religious accomodation requires the state to let individuals and businesses deny equal treatment and services to despised groups (e.g., gays/women/ethnic minorities), because their religion sanctions their dislike, then there would be little left of the civil rights laws. So I am curious to learn if there is a plausible limitation on Church's vision of "vigorous" religious liberty that would prevent the Church's liberty from seriously harming the civil liberties of many others.

Posted by: WmBrennan | Jun 1, 2012 9:50:27 AM

WmBrennan, with all due respect, The Catholic Church's teaching in regards to the use of contraception and the sexual objectification of the human person, is grounded in Love and respect for the inherent Dignity of all persons, who, from the moment they are brought into being at conception, have been created equal in Dignity while being complementary as male and female. As someone who had been sleeping in Gethsemane, I Pray that the Bishops will view this threat to Religious Liberty as a wake up call to help us understand the essence of authentic Love.

Posted by: N.D. | Jun 1, 2012 12:44:13 PM

Do you think that a law banning the sale or use of contraception would unconstitutionally infringe upon anyone's religious liberty?

Posted by: WmBrennan | Jun 1, 2012 1:21:10 PM

WmBrennan, the question is, do you believe a Law that mandates that every Insurance Company must provide contraception coverage so that those who for moral or religiously moral reasons do not want to condone promiscuity and the sexual objectification of the human person must choose between purchasing or providing a Health Care Plan that promotes the use of contraception or going without Health Insurance is a neutral Law?

Posted by: N.D. | Jun 1, 2012 2:10:24 PM

Yes. Will you answer my question?

Posted by: WmBrennan | Jun 1, 2012 2:14:31 PM

The Obama administration also believes this mandate is a neutral Law, but anyone who can read the signs of the Time we are living in knows that enough evidence exists to prove they are mistaken.

WmBrennan, to begin with, can you list any religion that believes promoting the sexual objectification of the human person is a Good thing?

Posted by: N.D. | Jun 1, 2012 3:45:01 PM

I see that the answer to my last question is no. And Sign O the Times was an excellent album, but I haven't read the liner notes recently. Let us know if you see anything interesting.

To answer your last question:

How beautiful your sandaled feet,
O prince’s daughter!
Your graceful legs are like jewels,
the work of an artist’s hands.
2 Your navel is a rounded goblet
that never lacks blended wine.
Your waist is a mound of wheat
encircled by lilies.
3 Your breasts are like two fawns,
like twin fawns of a gazelle.
4 Your neck is like an ivory tower.
Your eyes are the pools of Heshbon
by the gate of Bath Rabbim.
Your nose is like the tower of Lebanon
looking toward Damascus.
5 Your head crowns you like Mount Carmel.
Your hair is like royal tapestry;
the king is held captive by its tresses.
6 How beautiful you are and how pleasing,
my love, with your delights!
7 Your stature is like that of the palm,
and your breasts like clusters of fruit.
8 I said, “I will climb the palm tree;
I will take hold of its fruit.”
May your breasts be like clusters of grapes on the vine,
the fragrance of your breath like apples,
9 and your mouth like the best wine.

May the wine go straight to my beloved,
flowing gently over lips and teeth.[b]
10 I belong to my beloved,
and his desire is for me.
11 Come, my beloved, let us go to the countryside,
let us spend the night in the villages.[c]
12 Let us go early to the vineyards
to see if the vines have budded,
if their blossoms have opened,
and if the pomegranates are in bloom —
there I will give you my love.
13 The mandrakes send out their fragrance,
and at our door is every delicacy,
both new and old,
that I have stored up for you, my beloved.

Posted by: WmBrennan | Jun 1, 2012 6:01:08 PM

Wm, the "obvious concern" you cite is, we agree, a reasonable and important one. I do not believe that we can or should exempt all religious objectors from all anti-discrimination laws, and I do not pretend to have identified a crisp line between the accommodations the community should make and those it cannot. I think we can distinguish between (a) a law that requires equal treatment on the basis of race in the housing, employment, and public accommodations contexts (though, even there, we sometimes can and do exempt small businesses and landlords, etc.) and (b) a law that requires employers to pay for contraception and abortion-causing drugs for employees. The public interest served in (a) seems more weighty and granting an exemption in (b) would not undermine significantly the ability of the law in (b) to achieve its goal.

Matt, I am torn about the non-religious employers (the situation that some people call the "Taco Bell" situation). Remember, I think the mandate itself is unjust and unwise, so it's not that I think "all is well" if the government extends a broader religious-employer exemption. But, it would, I think, reduce the extent to which the mandate burdens religious freedom if it did so. I suppose it would reduce it even more if it exempted all religious objectors, but I guess I'm resigned to the unlikelihood of that happening. Not a very satisfactory answer, I know.

Posted by: Rick Garnett | Jun 2, 2012 8:07:32 AM

Professor Garnett, with all due respect, it is not unjust discrimination to discriminate against any act, including any sexual act, that does not respect the inherent Dignity of the human person, it is, in fact, an act of Love.

Posted by: N.D. | Jun 2, 2012 8:49:35 AM

Okay, so we agree that the religious accomodation issue involves a difficult line drawing question. I personally would have drawn a wider ambit around church-related institutional employers, but then again, the narrower rule of the Obama Administration is arguably easier to enforce and involves less government evaluation of religious motives. And I take it that pretty much everybody agrees that the government could use general tax revenue -- gathered from religious and non-religious alike -- to provide the same medical care to women whose churches refused to do so without causing any religious liberty concerns.

So this fight is really about the perception of endorsement caused by the arguable contours of a religious accomodation needed because the govnerment is providing healthcare through a mandate to employers instead of directly. The ability to dissociate oneself from government mandates is certainly worth litigating, as Notre Dame etc. are doing. But is this disagreement really worth the apocalyptic rhetoric (e.g., Jenky's recent philippic equating Obama with Hitler, Stalin, and other "demons") about the near death of religious freedom in the US? O'Callaghan is obviously trying to tone down the Bishops' "hyperbole", but I think that even he is reaching when he claims that the HHS mandate means that "as Christians we are to be forced back into the locked room—locked now from the outside by the force of law—allowed out only on condition that we do not speak of or act on what we have heard and seen, unless we have state approval".

The Bishops' hyperbole is certainly understandable as useful political theater in an election year, but I see no genuine danger to religious liberty here.

Posted by: WmBrennan | Jun 4, 2012 10:35:25 AM

Brennan -- it sounds like (a) we agree that the exemption should have, all things considered, been more generous, in order to better protect religious freedom (am I right on this?) but (b) disagree about whether the mandate, its premises, and other developments that the bishops have highlighted reveal a "genuine danger to religious liberty." In my view, the mandate, the Catholic Charities / adoption debates, the administration's position in the H-T case, the efforts to take away religious-hiring rights from groups that receive public funds, all these show an insensitivity to religious freedom, as I understand it, that is, I think, dangerous. Whether any particular speaker's rhetoric is overly florid is something that, I assume, folks will disagree about.

Posted by: Rick Garnett | Jun 4, 2012 10:39:58 AM

"am I right on this?" - Yes.

But I think that important institutional speakers have a heightened duty to avoid hyperbole and demagoguery. I certainly acknowledge that breaches of this duty are frequent occurences all along the political spectrum, but civility, or public civility at least, is important to a healthy civil society.

Posted by: WmBrennan | Jun 4, 2012 1:16:47 PM

I agree, Brennan -- though I suspect that, this side of Heaven, all of us (including me!) find it easier to spot the breaches made by those with whom we disagree than by those whose conclusions we share.

Posted by: Rick Garnett | Jun 4, 2012 1:36:29 PM