Friday, July 27, 2012
The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty. These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the "religious employer" exemption of the HHS regulations. Hercules is a for-profit, secular employer whose owners have objections of religious conscience. And Hercules is self-insured.
Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits. The court declined to address the plaintiffs' constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act. Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could "exercise religion," as well as several others, "merit more deliberate investigation"), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means. Here's the Court on compelling interest:
Following on my earlier post about John Gardner, John Finnis, and justice, this is a good time to remind readers about this fall's conference sponsored by the Notre Dame Center for Ethics and Culture under the new leadership of Carter Snead. The conference topic is "The Crowning Glory of the Virtues: Exploring the Many Facets of Justice" and the dates are November 8-10. Highlights include a lecture from Finnis revisiting and and reflecting further on his essay "The Priority of Persons," a moderated discussion on justice between Michael Sandel and Robert P. George, a lecture by Alasdair MacIntyre, and a keynote address from former Acting Attorney General and Deputy Attorney General Mark Filip. Panels include a discussion on religious liberty with Paul Horwitz, Rick Garnett, and yours truly and a panel on Thomas Aquinas on justice with Jean Porter, Father Kevin Flannery, SJ, and the lovely and talented Anna Bonta Moreland.
See here for details: http://ethicscenter.nd.edu/programs/fall-conferences/call-for-papers
I suppose we could have a blog devoted solely to responding to the New York Times and have enough content and then some, but I think it's important to set a positive tone. All the same...This editorial regards the decisions in some recent HHS mandate cases to dismiss the cases on ripeness grounds as obviously correct (one suspects that dismissals on standing grounds of claims in other civil rights contexts would not be so enthusiastically endorsed by the Times). But MOJ-friend Kevin Walsh (Richmond) has an interesting post here on what Kevin terms "litigation-induced clarity" (with illustration from litigation in which President Clinton personally intervened) and how forcing the government to articulate answers at oral argument to questions pertinent to the ripeness inquiry might be worthwhile (eg, as Kevin poses in his post, "Will an entity's health plan be exempt from the mandate or not? Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption?").
Thursday, July 26, 2012
Grass-roots boycotts can be a healthy sign of a vibrant marketplace of moral claims and identities. Government attempts to show the same moral outrage that animates such boycotts tends to shut down the very marketplace that boycotts can nurture. Thanks, Glenn Greenwald, for reminding Salon readers that threats against Chick-fil-A by the mayors of Boston and Chicago should be noxious to political progressives and conservatives alike.
Until Judge Posner's recent dissent in Elmbrook School District, I don't think I can remember the last time a judge cited to Gibbon's Decline and Fall of the Roman Empire (a quick Westlaw search shows only a handful of citations). If evidence were needed that Judge Posner writes his own opinions, one could probably stop with that quotation. I've got an old 1925 edition of the seven volumes edited by J.B. Bury which had been gathering dust here at home, and I started paging through it last night (a 12-volume on-line set may be found here). The beginning of Volume 2 (Chapters 15 and 16) is all about the rise of Christianity and the early Christians' view of the existing Roman civil power. Here's a bit from Chapter 15 where Gibbon's, one might say, ambivalent view of the early Christians shines through:
The Christians were not less averse to the business [of war] than to the pleasures of this world. The defence of our persons and property they knew not how to reconcile with the patient doctrine which enjoined an unlimited forgiveness of past injuries and commanded them to invite the repetition of fresh insults. Their simplicity was offended by the use of oaths, by the pomp of magistracy, and by the active contention of public life, nor could their humane ignorance be convinced that it was lawful on any occasion to shed the blood of our fellow-creatures, either by the sword of justice or by that of war; even though their criminal or hostile attempts should threaten the peace and safety of the whole community.* It was acknowledged that, under a less perfect law, the powers of the Jewish constitution had been exercised, with the approbation of Heaven, by inspired prophets and by anointed kings. The Christians felt and confessed that such institutions might be necessary for the present system of the world, and they cheerfully submitted to the authority of their Pagan governors. But, while they inculcated the maxims of passive obedience, they refused to take any active part in the civil administration or the military defence of the empire. Some indulgence might perhaps be allowed to those persons who, before their conversion, were already engaged in such violent and sanguinary occupations; but it was impossible that the Christians, without renouncing a more sacred duty, could assume the character of soldiers, of magistrates, or of princes.
* The same patient principles have ben revived since the Reformation by the Socinians, the modern Anabaptists, and the Quakers . . . . [MOD note: see Philip Hamburger's piece about 6 years ago, Religious Freedom in Philadelphia, for parallel disagreements between the Revolutionaries and the Quakers on the question of conscientious objection to military service]
Wednesday, July 25, 2012
In a summer reading group in legal and political theory, my colleague Michelle Dempsey led us in a discussion of a paper by John Gardner on John Finnis on justice, which will appear in a festschrift for Finnis (co-edited by our own Robby George). Among the insights of the paper was a point brought home to me when reading Aquinas with students earlier this summer about the contrast between justice as primarily a moral virtue of persons and justice as a virtue of political institutions--the contrast between the way Aquinas works out his view of justice in the Secunda Secundae and the view taken by John Rawls at the outset of A Theory of Justice. Here's a bit from the conclusion to Gardner's paper:
Finnis stands up for the classical view that questions of justice arise first and foremost for each of us as ordinary moral agents, and only derivatively for political authorities and the like. Thus, contra Rawls, the question of what makes ‘social institutions’ just cannot be tackled without first tackling the question of what would make you or me just.
And yet, as Finnis also says, there may be a special connection between justice and the law, such that justice may strike us as the first virtue of the law, even though it strikes us as only one virtue among many for you and me, and perhaps not the one that we would most treasure among our friends and colleagues and travel agents and so forth. Why is a government department responsible for the workings of the legal system often called a ‘ministry of justice’? Why are law courts sometimes known as ‘courts of justice’? Why is legislation aimed at reform of the criminal process sometimes called a ‘criminal justice act’? Why not, for example, a ministry of kindness or a court of honesty or a criminal diligence act? Here is a good answer from Finnis:
[W]hether the subject-matter of [an] act of adjudication be a problem of distributive or commutative justice, the act of adjudication itself is always a matter for distributive justice. For the submission of an issue to the judge itself creates a kind of common subject-matter, the lis inter partes, which must be allocated between parties, the gain of one party being the loss of the other.
The point is that the bringing of a moral question before the courts is a way of guaranteeing its transformation into a question of justice even if there would, outside the courts, have been plenty of other (non-allocative) ways to approach it. If that is right, then we want our judges to be just people above all, even though we would not want our doctors or our social workers or our airline pilots, let alone our friends, to be just above all. I have explored this topic in considerable detail elsewhere, without at the time acknowledging, because without at the time being aware of, my debt to Finnis. His is a way of explaining, without condoning, the late twentieth-century tendency to think of justice as a topic for political and legal philosophers rather than for other moral philosophers. It allows us to see why Rawls began where he did, without agreeing that it was the best way to begin. For one may be led to imagine that justice is the first virtue of social institutions in general by taking an overly juridical view of social institutions, by thinking of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty. Finnis does not make this mistake. But he certainly does help us to see how others come to do so.
My first time eating at a Chick-fil-A was back in the mid-90s when the chain opened a restaurant on the Harvard campus. (I'm guessing that wouldn't happen today.) I'm not willing to drive far enough to eat at one on August 1 in support of Mike Huckabee's "Chick-fil-A Day," but I do support the sentiment. It's OK for business owners and executives to have different views on a whole range of issues, including marriage, and for those views to be reflected in a company's marketplace identity. Let's not exaggerate the marketplace identity that Chick-fil-A is trying to cultivate, though.
Even Dana Milbank, while trying to take an "above the fray" tone in this op-ed for the Washington Post, gets it wrong. Milbank quotes from the controversial interview that the restaurant's president, Dan Cathy, gave to the Baptist Recorder. Cathy said:
“We are very much supportive of the family — the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives.”
According to Milbank, "this implied that gay people (not to mention divorced people) had no business eating at Chick-fil-A."
Wait a second. How does expressing support for the traditional family imply that members of non-traditional families have no business doing business with Chick-fil-A? The very next sentence from Cathy, omitted by Milbank, was "We give God thanks for that." This doesn't sound like he's about to hang an "intact first marriages only" sign on the restaurant window; it sounds like an authentic expression of values in a spirit of thanksgiving.
I'm on record as supporting a morally diverse corporate landscape, and this is a great example of that. There is a price to pay, of course, and Chick-fil-A has to count the cost. (Some of the costs now being inflicted on the company can only be described as both absurd and ominous.) If folks want to boycott the restaurant, that's fine and in keeping with a time-honored American tradition. But let's not pretend that Chick-fil-A is out to divide and demonize its customers.
UPDATE: The folks at Get Religion weigh in on the media coverage.
From Steven Smith, at the CLR Forum blog:
We’ve been discussing on this blog the prospects for religious freedom, and factors that may affect those prospects. Here’s one factor that we haven’t really mentioned, but that I think will be crucial: the church. The fortunes of religious freedom, I would argue, have always been connected in close if complicated ways to the fortunes of the church. And this connection is likely to continue.
Today is the anniversary of Pope Paul VI's encyclical letter, Humanae vitae, which is dated July 25, 1968. Here's a bit from my colleague John Finnis's review of the encyclical ("Natural Law in Humanae Vitae," 84 LQR 467 (1968)):
“Philosophy cannot compel any love, but it can help to uncover the ultimate sources of significance of every man’s action, and to present these sources in a truer light, hoping that love will follow light. This, for the classical exponents of natural law, is the function of rational discussion, in which the participants are as ready to listen and meditate as to speak.”
Here is a link to a page the USCCB put together on the 40th anniversary, which includes some links to articles, etc. Here is the USCCB's statement on the occasion of the 25th anniversary. And, here is a pastoral letter that then-Bishop of Denver Charles Chaput did, on the 30th anniversary. A quote from that letter:
[I]n presenting the nature of Christian marriage to a new generation, we need to
articulate its fulfilling satisfactions at least as well as its duties. The
Catholic attitude toward sexuality is anything but puritanical, repressive or
anti-carnal. God created the world and fashioned the human person in His own
image. Therefore the body is good. In fact, it's often been a source of great
humor for me to listen incognito as people simultaneously complain about the
alleged "bottled-up sexuality" of Catholic moral doctrine, and the size of many
good Catholic families. (From where, one might ask, do they think the babies
come?) Catholic marriage -- exactly like Jesus Himself -- is not about scarcity
but abundance. It's not about sterility, but rather the fruitfulness which
flows from unitive, procreative love. Catholic married love always implies the
possibility of new life; and because it does, it drives out loneliness and
affirms the future. And because it affirms the future, it becomes a furnace of
hope in a world prone to despair. In effect, Catholic marriage is attractive
because it is true. It's designed for the creatures we are: persons meant for
communion. . . .
Over at Concurring Opinions, there are a couple of posts (here and here) that should interest MOJ readers. My friend John Inazu has a typically thoughtful piece in the Hastings Law Journal about Justice Ginsburg's religious freedom jurisprudence, focused on a forceful criticism of her opinion for the Court in CLS v. Martinez. The post at Concurring Opinions just prior to that is a short discussion of Justice Pierce Butler (a Catholic, as it happens) and his courageous dissent in Buck v. Bell, which provides a nice opportunity to point readers to the Vanderbilt Law Review article by former-Minnesota prof David Stras (now on the Minnesota Supreme Court) on Justice Butler's unduly neglected legacy.