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.

Tuesday, February 12, 2013

Some thoughts on the bishops' response, lawyers, and for-profits (responding to MSW)

Michael Sean Winters has a detailed response to the Catholic bishops' recent response to the Administration's proposed changes to the mandate.  While there are (as usual!) some things in his post which strike me as sensible, I thought it missed the mark a bit in two places.  First, there was what seemed to me to be an unfair swipe at the "lawyers" -- especially the great folks at the Becket Fund (who litigated the case that Winters and I agree was a huge win in Hosanna-Tabor, where the Court rejected what Winters and I agree was the Administration's strikingly unsound argument against the ministerial exception).  "The lawyers" have had and should have an important role in this debate because we are talking about, well, a law, about what it actually says and does, and about whether that law is, well, legal.  It is not fair to say that the Becket Fund has "an agenda that has more to do with politics than with pastoring" because -- while it's true that the lawyers at Becket are not pastors -- their work over the years has been admirably non-partisan, in the sense that they defend the religious liberty of all, "from the Amish to Zoroastrians."  They do not do the work they do to help Republicans, or hurt Obama, but to defend what the Church's pastors at Vatican II reminded us is a fundamental human right.

It's also worth noting, I think, that the continuing urgent need for lawyers in this debate has been (to me) demonstrated by the unwillingness of many commentators, journalists, and bloggers to read carefully the new proposal  and figure out what -- given the relevant regulatory and legal environment -- it actually would, and would not, (and can, and cannot) do.  Although, as I've said several times, the proposed change to the definition of exempt religious employers is welcome, the confidence expressed in some quarters that the new proposal eliminates the basis for religious-freedom concerns is, it seems to me, premature.  Of course, if we do, eventually, get a new version of the mandate that *does* answer the concerns, then that will be a very good thing.  It is not the case that the "lawyers" want to litigate for the heck of it; they want to solve the problem.

Finally, Michael Sean writes:   "The most disappointing aspect of the bishops’ statement was their continued insistence on an exemption for private, for-profit employers. As I wrote Monday, this is a proper concern for the Becket Fund, it is not a proper concern for the bishops. And, furthermore, I think we need to be very careful in this hyper-individualistic society of ours, in advocating an individual’s right to claim an exemption from a law based on their religious beliefs."  I am afraid I disagree.  While it is true (as I have said often on this blog) that the enterprise of accommodating faith-based objections to general laws can be a complicated one -- one that might well "play out" differently, in some cases, for for-profit employers than for parochial schools -- the idea that the religious-freedom rights of business owners is "not a proper concern for the bishops" seems very wrong to me.  Religious-freedom is a human right, and is presented as such in authoritative Catholic teaching.  How could violations of that right not be a concern of the bishops, simply because their own and the Church's institutional interests are (perhaps) taken care of.  Winters is worried about the argument that "an individual [has a ] right to claim an exemption from a law based on their religious beliefs" and, to be sure, that argument can be abused and should, in some cases, be rejected.  That said, there is nothing objectionably "indvidualistic" -- it's in Dignitatis humanae -- about the argument that religion-based exemptions from general laws should generally be extended, to the extent possible, consistent with public order and the common good.


Garnett, Rick | Permalink

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