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.

Friday, May 25, 2012

Liberty and Justice (Must Be) For All

Becket Fund to Thomas More Law Center: Religious Liberty is Everyone’s Right – Not Just Christians

If the Thomas More Law Center professes itself to be a defender of religious liberty, let it follow the lead of the Becket Fund in standing up for the rights of all.

For Immediate Release: May 25, 2012

Following multiple attempts over the past two months to settle matters quietly, the Becket Fund for Religious Liberty is demanding a public apology from the Thomas More Law Center for insulting both Muslims and the Becket Fund for representing Muslims in the battle for religious freedom.

“The Becket Fund proudly defends the religious liberty of people of every faith,” said Bill Mumma, President of the Becket Fund, the national public interest law firm that successfully argued the landmark Hosanna-Tabor case before the U.S. Supreme Court earlier this year. “Religious freedom is secure for none of us – Muslim, Catholic, Jew – unless it is secure for us all. That’s a universal truth, and the Thomas More Law Center should know that.”

On February 27, 2012, Tom Lynch, the Director of Mission Advancement at Thomas More Law Center, tweeted, “Believe Islam a religion, then support the Becket Fund. Believe it will destroy US, then supt thomasmore.org.”

Immediately following Mr. Lynch’s offensive tweet, Bill Mumma, with Chairman of the Becket Fund Board, Mary Ann Glendon, and fellow Board member, Robert George, wrote to the President of the Thomas More Law Center, Richard Thompson, to express serious disappointment at Mr. Lynch’s tweet. Despite multiple attempts at contact, Mr. Thompson has not responded.

“The religious liberty of people of all faiths is under attack today on various fronts,” said Professor George. “This is no time for people of faith to be fighting amongst ourselves or casting unjust aspersions on each other. If the Thomas More Law Center professes itself to be a defender of religious liberty, let it follow the lead of the Becket Fund in standing up for the rights of all. Religious freedom organizations should be leading the fight against religious bigotry; they should not be practicing it against our Muslim fellow citizens or anyone else.”


The full text of the initial March 2nd letter to Mr. Thompson is below:

Dear Mr. Thompson:

We are, respectively, President, Chairman of the Board, and a member of the Board of the Becket Fund for Religious Liberty. We write to express our concern about a tweet from Tom Lynch, Director of Mission Advancement at Thomas More Law Center.

Here is what it said:

Tom Lynch ‏ @trumpetman

Believe Islam a religion, then support the Becket Fund. Believe it will destroy US, then supt thomasmore.org RT iina.me/wp_en/?p=10070…

We hope you will agree that the sentiment expressed in the tweet is insulting and unworthy of your organization. Above all, it is unjust to our Muslim fellow citizens, and contrary to what we are taught by our Catholic faith. Here is the express teaching of the Second Vatican Council, in the document Nostra Aetate, on the faith of Muslims:

The church has also a high regard for the Muslims. They worship God, who is one, living and subsistent, merciful and almighty, the Creator of heaven and earth, who has also spoken to humanity. They endeavor to submit themselves without reserve to the hidden decrees of God, just as Abraham submitted himself to God’s plan, to whose faith Muslims eagerly link their own. Although not acknowledging him as God, they venerate Jesus as a prophet; his virgin Mother they also honor, and even at times devoutly invoke. Further, they await the day of judgment and the reward of God following the resurrection of the dead. For this reason they highly esteem an upright life and worship God, especially by way of prayer alms-deeds and fasting.

We respectfully request that you direct Mr. Lynch on behalf of the Thomas More Law Center to send a tweet apologizing to our many Muslim fellow citizens who are honorable, law-abiding people who possess the same right to religious freedom possessed as a matter of natural and constitutional law by all men and women.


William P. Mumma, Mary Ann Glendon, and Robert P. George

May 25, 2012 | Permalink | TrackBack (0)

Gregory VII and Libertas Ecclesiae

In light of the issues of the day, we can hardly let this Friday of Memorial Day weekend pass without acknowledging today's feast of Gregory VII, the great reformer of the medieval church who died on this date in 1085. Here is a short excerpt from a discussion of Gregory's legacy in Alasdair MacIntyre's Whose Justice? Which Rationality? (pp. 159-60):

Gregory's particular reforms were all aimed at enabling the concrete organizational forms of the church to express more adequately this universality and this sovereignty [of the church]. The widespread breakdown in maintaining priestly celibacy and in preventing simony, and the tendency of bishops to value the favors conferred by princes rather than the authority of the papacy, were all understood by Gregory as ways in which sex, money, and political power were used to subvert the independence, the libertas, of the church. So that in his identification of the points at which he found himself compelled to enter into political conflict, most notably with the Emperor Henry IV, what is always in question is a vindication of the ability of the church to determine its own structure in a way that conforms to the sovereignty of God.

Libertas, therefore, is a condition for iustitia, and when both political societies and the universal church are ordered in accordance with justice, the appropriate libertas of each will also have been achieved. In affirming the order of iustitiaagainst those ostensibly Christian secular rulers in the established powers of Europe, the Salian Reichand the France of the Capetian kings, whose aggrandizement violated that order, the second responsibility of Gregory VII's papacy was discharged. The order of iustitia is an order embodied in the universal church, an order in which each human being has his or her own allotted place and his or her own allotted duties. To occupy that place and to perform that function well is to be just. To refuse to occupy that place or to discharge its duties badly or to rebel against the order defining that place is to fail in respect of justice.

May 25, 2012 in Moreland, Michael | Permalink | Comments (0) | TrackBack (0)

Well said, Fr. Ted

Fr. Ted Hesburgh, who just turned 95 (!!), put well and pithily what's going on in the HHS lawsuits:  "I would only say that I think the university is doing what it should do. The government just overreached and overstretched and has to be brought up short," he says.

May 25, 2012 in Garnett, Rick | Permalink | Comments (7) | TrackBack (0)

How Law is Like a Settling House

Paul Horwitz has a very nice post in response to Rick's discussion of Employment Division v. Smith.  Paul recognizes that there are ways to reconcile Smith and Hosanna-Tabor, but he puts together a nifty argument that there are some deeper tensions between the two decisions as well as interesting questions about the relationship of institutional and individual free exercise.

For years before we moved to New York, my wife and I lived in a lovely old nineteenth century townhouse in Boston.  We lived there for about 5 years, and in those years, we noticed gradual shifts in the house's structure, particularly the higher up you went.  The joints between walls would move, overlap -- settle, settle, settle.  The floor would slowly develop a ridge or a depression.  The stairs would gradually slant left, except at the bottom where they straightened out.  An unexpected feature of this process was that settlements in one direction could also slow down, or even reverse course.  Guests who visited only once in a while would not notice these micro-shifts.  Appreciating these changes required the perspective of time.     

In a recent talk that Mike McConnell gave over at St. John's, he said something along these lines: when there is an instability in the law, the likeliest outcome is that over time -- sometimes over a very long time, depending on the quality of the tension -- the law will resolve the instability in one or another direction.  Those shifts are signs of the law settling, and the process of that settling continues without ending point, sometimes changing directions.  Maybe the instability that Paul recognizes will give rise to doctrine over the next 50-100 years that shifts, settles, reshifts, and resettles.  

May 25, 2012 in DeGirolami, Marc | Permalink | Comments (1) | TrackBack (0)

"Massive lawsuits, minor coverage"

I know, I know -- "conservative" claims about "media bias" are really just disigenuous efforts by Rove-ian right-wingers to distract attention from the awesome power of Fox News, EWTN, and Rush Limbaugh.  Still, as the folks at Get Religion discuss in detail, the near-silence of many traditional media outlets regarding this week's lawsuits by Catholic institutions against the administration is striking (and contrasts glaringly with their consistent and close interest in other kinds of legal proceedings involving such institutions).  It's almost as if -- I know, I know, it's not, but still . . . -- some people with significant power over information flow are trying to minimize, in an election year, the extent to which the word gets out that the administration is being sued by 40-plus Catholic institutions, schools, and social-service agencies for violating fundamental religious-freedom rights.  Of course, this relative silence is for the best, since the blogosphere's armchair lawyers and mind-readers have assured me that the lawsuits are frivolous, premature, divisive, and / or deviously partisan, and we wouldn't want people to get the wrong idea.

May 25, 2012 in Garnett, Rick | Permalink | Comments (8) | TrackBack (0)

Thursday, May 24, 2012

A quick response to Winters on conscience and Smith

Michael Sean Winters has been blogging a lot, in recent days, at Distinctly Catholic, about the mandate, the lawsuits, and religious liberty.  In this post -- which is about many things, including the remarks by Bishop Blaire that some are trying to frame as revealing deep partisan divisions on the bishops -- he makes (among other things) two claims that, in my view, are not quite right.

First, there is the claim -- which, I admit, is widely accepted, and accepted by many I respect -- that it is the Smith case, and not the recent acts and decisions of the current administration, that should be regarded as an unprecedented and dangerous assault on religious freedom.  Some make this claim because they believe that Smith represents a wrong interpretation of the First Amendment, I know, but I think that some make it just because it's kind of fun to put Justice Scalia in the religious-freedom-villain hot-seat.  Still, as I''ve probably said too many times, the claim is wrong.  (For an elaboration of my view, go here.)  Smith was contestible, but I think correct, interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials  elected officials to respect and accommodate religious liberty, to the extent possible.  Smith is a "who decides?" case (ed.:  aren't they all?  RG: yes, yes, I know . . . .), not a "religious freedom should lose to state interests" case.

Winters also criticizes calls for respecting and accommodating individual conscience (as opposed to institutions' religious freedom and the freedom of the church).  He writes:

You can cherry pick a couple of sentences out of Dignitatis Humanae, the Second Vatican Council’s Decree on Religious Liberty, to justify such a stance, but my fear . . . is that by emphasizing the right to individual conscience rights, in a culture which understands conscience differently from the way Catholics understand it, the USCCB was unintentionally “feeding the beast” of libertarianism in a political culture where libertarianism is the cancer that most afflicts our Catholic understanding of the Common Good. For us, conscience is the voice of God speaking to us about our moral obligations in the concrete circumstances of our lives. In the ambient culture, conscience is private judgment. Why would the USCCB support an argument that sides with the sixteenth century Reformers on the central issue of their day and our day: Is truth someone we discern and discover, and always together, or is it something we manufacture on our own?

Certainly, I'm a big fan of the Freedom of the Church (Read this.)  And, Winters is right that most in contemporary America -- including, remember, many Catholics who invoke "conscience" as authorization to act not in accord with certain Church teachings -- have an unsound, purely privatized understanding of "conscience."  And, I even agree with Winters that there will, in some cases, be good, "politics is the art of the possible" reasons to distinguish, when crafting religious-liberty accommodations, between exemptions-for-institutions and exemptions-for-individuals.  All that said, it is not "cherry picking" to find in Dignitatis Humanae -- it's right there! -- a clear affirmation of the right of every person to religious liberty:  "This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits." 

In saying this, the Declaration is not endorsing the private-judgment view of conscience; instead, it is proclaiming that it is an implication of the human dignity of every person that, even when he or she is wrong in religious matters, he is not to be forced "to act in a manner contrary to his own beliefs . . . within due limits."  Winters does not need, I think, to downgrade or link with libertarian and Protestant errors the religious-liberty rights of individuals.  I think it's enough for him to simply remind us that "within due limits" does important work. 

May 24, 2012 in Garnett, Rick | Permalink | Comments (15) | TrackBack (0)

Wednesday, May 23, 2012

What is a Religious Institution?

One of the more interesting issues in the controversy over the HHS mandate (or perhaps I should say one of the few that hasn't been flogged to death in the blogosphere) is the precise language regarding the scope of the exemption that HHS included for some religious employers. The final rule states that an institution is a "religious employer" for purposes of the exemption if it "meets all of the following criteria:"

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization [under the Internal Revenue Code].

45 C.F.R. § 147.130(a)(iv)(A)-(B).

Not surprisingly, those of us who object to the mandate regard this exemption as impermissibly narrow and, moreover, illegitimate government interference in deciding what does and does not constitute a "religious employer." I'm prompted to make this point because of a comment over at dotCommonweal that the exemption "is deliberately vague, of course, and there are good reasons to object to the way the Department of Health and Human Services designed the exemption--although that the government would try to figure out which institutions are religious and which are not is hardly unprecedented" (and linking to an earlier post on America's blog saying that the langauge of the exemption comes from labor and employment law). A few quick points for discussion:

The language of the HHS mandate is not (pace the author at America's blog and others inclined to view this as rulemaking as usual) borrowed from (and is substantially narrower than) religious exemptions in other regulatory settings such as labor and employment law. NLRB v. Catholic Bishop. 440 U.S. 490 (1979) and lower court interpretations of Catholic Bishop in such cases as Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc) stand for the proposition that the state cannot (as a matter of statutory interpretation of the NLRA operating under a doctrine of constitutional avoidance) pick and choose which church-affiliated institutions are "sufficiently" or "completely" religious. See also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343 (1987) (Brennan, J., concurring in the judgment) ("[D]etermining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.”)

In employment law, cases such as LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that the exemption for religious institutions from Title VII's prohibition on discrimination based on religion is reasonably broad. As Judge Roth puts it in LeBoon:

First, religious organizations may engage in secular activities without forfeiting protection under Section 702....

Second, religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection....

Third, religious organizations may declare their intention not to discriminate, as the LJCC did to the United Way and in its employee handbook, without losing the protection of Section 702....

Fourth, the organization need not enforce an across-the-board policy of hiring only coreligionists....

We disagree with LeBoon's contention that the LJCC's willingness to welcome Gentile members and even to host Hindu services is incompatible with the view that the LJCC was a religious organization. Indeed, these characteristics are clearly tied to some of the Jewish principles that guided the LJCC-tolerance toward other faiths, healing the world, and doing the right thing. We will not deprive the LJCC of the protection of Section 702 because it sought to abide by its principles of “tolerance” and “healing the world” through extending its welcome to non-Jews.

503 F.3d 217 at 230.

So where did the HHS mandate exemption language come from? As one of the lawyers on the cert petition in 2004 challenging California's contraceptive mandate, I am fairly certain that the narrow, four-prong test in the HHS mandate initially appeared in a revised 1999 draft bill by then-California state senator Jackie Speier (now a US representative). In short, the language in the HHS exemption has always been about coercing Catholic social service agencies, hospitals, and universities and colleges to provide contraceptive coverage, and the problem now is the same that my colleagues and I stated then:

Catholic Charities’ stated purpose is not to “inculcat[e]” religious values, but to carry out the Church’s religious mission to perform corporal works of mercy. It provides social services to anyone in need, whatever his or her religious beliefs. And it employs those who, regardless of their own religion, embrace Catholic Charities’ mission and understand that it is pursued in conformity with the faith and teachings of the Church of which it is a part. In the judgment of the State, Catholic Charities’ religious rights are forfeited for these reasons—because, to put it bluntly, it puts its religion into practice and does so in an all-inclusive way. There is, California seems to say, something less religious about such an organization. A truly religious organization, in its view, would be more exclusive in its associations, more single-minded in its purpose, and less concerned about the welfare of others. It would be concerned only with drilling, or “inculcating,” its beliefs into the minds of its adherents.

There is no precedent for such a narrow view of religion.

May 23, 2012 in Moreland, Michael | Permalink | Comments (5) | TrackBack (0)

A quick response to Prof. Cafardi

Over at America, Prof. Nicholas Cafardi, whose work is probably familiar to many MOJ readers, has a post that is critical of the decision by Catholic institutions' to file lawsuits challenging the preventive-services mandate.

Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."

With all due respect, this charge misses the mark. These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way -- besides making objecting religious employers bear the cost -- of subsidizing contraceptives for women who work at such institutions. The imposition here is coming not from the plaintiffs, but from the Administration.

Prof. Cafardi also writes: "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?" But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.

As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed. It is entirely reasonable for these institutions -- who are subject to costly obligations *now* to prepare to comply with the current mandate -- to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road.  And, in any event, even the floated changes do nothing about the troublingly narrow religious-employer exemption contained in the current mandate.

May 23, 2012 in Garnett, Rick | Permalink | Comments (6) | TrackBack (0)


In a National Catholic Reporter article, Doug Kmiec says the following:

The pro-abortion, even pro-infanticide, label tossed at Obama throughout the 2008 campaign was both unfair and contestable. The president is pro-decision-making by pregnant women, but he is not at all shy of saying how he hopes the decision would be made. Here is what the president said to the Domers:

"Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions. So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

"Pro-decision-making by pregnant women." So this is how we, as defenders of the lives of children in the womb are to characterize the question of abortion? Someone like President Obama who would protect the lawfulness of deliberate feticide, enact policies to make it as widely available as possible, and support its funding with taxpayer money is not pro-abortion, he is merely "pro-decision-making by pregnant women"? Even when the decision (carefully left undescribed) is, in truth, a decision about whether to kill the child? It's this kind of abuse of language that people seem always to resort to when we want to obscure from view a deep injustice that is being done against our fellow human beings.

On the question of the fairness or unfairness of criticism of Barack Obama on abortion and infanticide, I would defy Doug or anyone else to identify errors of fact regarding what Obama has said and done in either of these two 2008 articles on the subject.

"Obama's Abortion Extremism":


"Obama and Infanticide":


What Yuval Levin and I report (and document) in these articles is either true or false. If it is false, the President's defenders should have no difficulty in exposing the falsehoods, since every point we address is a matter of public record.  If what we report is true, then it is the defenders---at least the ones who continue to regard themselves as pro-life---who have some explaining to do, not his pro-life critics.

May 23, 2012 | Permalink | TrackBack (0)

Tuesday, May 22, 2012

Winters on the Notre Dame Contraception-Mandate Suit

Overall, I think, a fine post by MIchael Sean Winters on Notre Dame's suit. There's some inflammatory language ("Sebelius and her fellow travelers") in a post that condemns inflammatory debate, but overall it seems to me incisive, and hard-hitting in the right places and manner. Money quote:

The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship.

The Notre Dame complaint and Fr. Jenkins's letter explain cogently why, even assuming the administration's good faith in its claim to be seeking further accommodation, Notre Dame could not wait until it all might get sorted out. As is true in many cases, I think, the language of his message packs extra punch (more than most interventions on both sides of this debate) because it is measured, non-demonizing, and simply lays out the steps in the university's reasoning:

Although I do not question the good intentions and sincerity of all involved in [the further-accommodation] discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. . . . We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.

May 22, 2012 in Berg, Thomas | Permalink | Comments (6) | TrackBack (0)