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.

Saturday, June 29, 2013

Conscience and Its Enemies

The Protection of Conscience Foundation has posted a substantial chunk of the title chapter of my new book, Conscience and Its Enemies, here:  http://www.consciencelaws.org/ethics/ethics079-010.aspx.  The chapter zeroes in on a report issued by the Ethics Committee of the American College of Obstetrics and Gynecology entitled "The Limits of Conscientious Refusal in Reproductive Medicine."

Conscience and Its Enemies (the book) is available here:  http://www.barnesandnoble.com/s?store=allproducts&keyword=Conscience+and+its+enemies

Some excerpts from the PCF excerpt:

I found the ACOG Ethics Committee 's opinion shocking and,  indeed, frightening. One problem was its lack of regard - bordering on contempt , really - for the sincere claims of conscience of Catholic, Evangelical Protestant , Orthodox Jewish , and other pro-life physicians and health-care workers. But beyond that, it treated feticide - the deliberate destruction of a child in the womb - as if it were a matter of health care, rather than what it typically is: namely, a decision based on nonmedical considerations (such as whether a woman or her husband or boyfriend happens to want a child). On the understanding of medicine implicit in the report, the ends of medicine are fundamentally not about the preservation and restoration of health considered as an objective reality and human good but rath er concern satisfying the personal preferences or lifestyle desires of people who come to physicians requesting surgeries or other services, irrespective of whether these services are in any meaningful sense medically indicated. . . .

The report goes on to "outline options for public policy" and propose "recommendations that maximize accommodation of the individual's religious and moral beliefs while avoiding imposition of these beliefs on others or interfering with the safe, timely, and financially feasible access to reproductive health care that all women deserve." Yet again notice that every concept in play here - the putative balancing, the judgment as to what constitutes an "imposition" of personal beliefs on others, the view of what constitutes health care or reproductive health care, the judgment about what is deserved - is philosophical, not scientific or, strictly speaking, medical.

To the extent that they are "medical" judgments even loosely speaking, they reflect a concept of medicine informed, structured, and shaped by philosophical and ethical judgments - bad ones, by the way, such as the implicit judgment that pregnancy, when unwanted, is in effect a disease.

Those responsible for the report purport to be speaking as physicians and medical professionals. The report's supposed authority derives from their standing and expertise as physicians and medical professionals, yet at every point that matters, the judgments offered reflect their philosophical, ethical, and political judgments, not any expertise they have by virtue of their training and experience in science and medicine. . . .

The report, in other words, in its driving assumptions, reasoning, and conclusions, is not morally neutral. It represents a partisan position among the possible positions debated by people of goodwill in the medical profession and in society generally. For me, the partisanship of the report is its most striking feature. It represents a sheer power play on behalf of pro-abortion individuals who happen to have acquired power in their professional association. This is not about medicine. It is about ideology. It is about politics and political power.

If the committee's advice were followed, this medical field would be cleansed of pro-life physicians whose convictions required them to refrain from performing or referring for abortions. Faithful Catholics, Evangelicals and other Protestants, and many observant Jews and Muslims would be excluded from or forced out of obstetrics and gynecology. The entire field would be composed of people who agreed with, or at a minimum went along with, the moral and political convictions of the report's authors.

So, in truth, who in this debate is guilty of intolerance? Who is trampling on freedom? Who is imposing values on others? These questions, too, answer themselves.

It won't do to say that what the committee seeks to impose on dissenters is not a morality but merely good medical practice, for it is not science or medicine that is shaping the report's understanding of what counts as good medical practice. It is, rather, a moral opinion doing the shaping. The opinion that abortion is good medicine is a philosophical, ethical, and political opinion; it is a judgment brought to medicine, not a judgment derived from it. It reflects a view that abortion is morally legitimate and no violation of the rights of the child who is killed. It also reflects the view that medicine is rightly concerned with facilitating people's lifestyle choices even when they are neither sick nor in danger of being injured, and even when the "medical" procedure involves the taking of innocent human life. . . . 

The report's constant use of the language of"health" and "reproductive health" in describing or referring to the key issues giving rise to conflicts of conscience is at best question begging. No, that's too kind. The report's use of this language amounts to a form of rhetorical manipulation. The question at issue in abortion is not "reproductive health" or health of any kind, precisely because direct abortions are not procedures designed to make sick people healthy or to protect them against disease or injury. Pregnancy is not a disease. The goal of direct abortions is to cause the death of a child because a woman believes that her life will be better without the child's existing than it would be with the child's existing. In itself, a direct (or elective) abortion - deliberately bringing about the death of a child in utero - does nothing to advance maternal health (though sometimes the death of the child is an unavoidable side effect of a procedure, such as the removal of a cancerous womb, that is designed to combat a grave threat to the mother's health). That's why it is wrong to depict elective abortion as health care.

June 29, 2013 | Permalink | Comments (0)

Final HHS rule

The final rule re the HHS contraception mandate has been issued.  Here is the HHS press release.  The bishops are withholding judgment for now.

June 29, 2013 in Vischer, Rob | Permalink | Comments (2)

NYT publishes nuanced review of George

In case you missed it, the New York Times ran a fairly positive review by Kay Hymowitz of Robby George's "Conscience and Its Enemies."  An excerpt regarding Robby's opposition to same-sex marriage:

To chalk this up to homophobia is to miss something crucial; George is relying on philosophical ideas that predate the modern concept of sexual identity and that lead him to reject all extramarital — and even some kinds of marital — sex. The more pertinent philosophical objection is that his reasoning about the nature of marriage, however well pedigreed, is so far removed from most people’s lived experience that it will be inconsistent with their intuitions about the human good. George might counter that contemporary liberal secularists have no coherent philosophy of marriage, reasoned or intuited. About that, he is almost certainly right.

June 29, 2013 in Vischer, Rob | Permalink | Comments (3)

Friday, June 28, 2013

Thoughts on the marriage cases

Sherif Girgis, Ryan Anderson, and I (co-authors of What is Marriage? Man and Woman: A Defense) offer our thoughts on the recent Supreme Court decisions on marriage:  http://www.thepublicdiscourse.com/2013/06/10455/

June 28, 2013 | Permalink | Comments (0)

Thursday, June 27, 2013

A little good news...

The 10th Circuit Court of Appeals gave Hobby Lobby a partial victory today in its suit claiming that the HHS contraceptive mandate violates Hobby Lobby's rights under the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. The court said:

We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

June 27, 2013 in Scaperlanda, Mike | Permalink | Comments (8)

"What Wendy Davis’s Filibuster Means for Christian Communion"

Rachana Chhin, one of our rising 3L law students (and Texan as well as a Murphy Institute Student Fellow) wrote this eloquent essay about Wendy Davis's filibuster in the Texas legislature that prevented passage of legislation that would have prohibited abortions after 20 weeks, raised standards of care in abortion clinics, and required doctors performing abortions to have admitting privileges at local hospitals.  Gives you hope for what the next generation of lawyers might be able to accomplish in injecting some charity into future debates on this topic

June 27, 2013 in Schiltz, Elizabeth | Permalink | Comments (0)

Navigating the Thicket of Hollingsworth v. Perry


In its conclusion, the majority in Hollingsworth v. Perry stated that states “cannot alter [the role of the Federal courts in determining standing] by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.” My objective is to demonstrate why I consider that the majority missed important distinctions about the status of the petitioners/proponents in Hollingsworth and why they did and do have standing in accordance with the authorities relied upon by the majority.

To be clear about what follows, the majority in Hollingsworth concluded that the Federal courts, including the Supreme Court of the United States, did not have jurisdiction to hear the petitioners’/proponents’ writ of certiorari because they did not have standing—a vital issue for presenting a matter over which the Federal courts can have jurisdiction. Without standing, there is no jurisdiction. As the majority notes, it is not enough that the would-be party have “a keen interest in the issue” for more is required. This party, in order to be properly before the Federal judiciary, must have “a concrete and particularized injury.” The Hollingsworth majority concluded that the petitioners/proponents did not enjoy this status, and therefore they did not have standing, and therefore the Federal judiciary did not have jurisdiction. In reviewing the authority that applies to the issue of standing and the majority’s use of this authority, I conclude that they, the majority, were wrong. Here’s why:

First of all, there is no question that the method of enacting Proposition 8 was a lawful means of amending the laws of the State of California, specifically its constitution. Procedural challenges to the amendment were nullified by the lawful authorities of the state. Moreover, the amendment was narrow and did not adversely affect the interests of those who sought legal protection of same-sex unions. The gist of the matter was that the term “marriage” would not be given to these unions which otherwise enjoyed rights and privileges protected by other laws of the state. However, proponents of same-sex unions were not satisfied because they wanted to use the nomenclature of “marriage” to apply to their unions. The legal obstacle they faced was that the amendment to the state’s constitution defined “marriage” as the union of a [one] man and a [one] woman. Consequently, those advocating for the legal ability to use the term “marriage” for same-sex unions challenged the legal validity of the amendment to the state constitution in Federal District Court. So I return to the status of the petitioners/proponents in Hollingsworth.

As the majority noted in Hollingsworth, executive members of the state government—including the governor and attorney general—have the conventional duty, amongst other matters, to support and defend the Constitution of the State of California “against all enemies, foreign and domestic” and that these obligations are done so “freely, without any mental reservation or purpose of evasion.” As it turns out, the governor and the attorney general enforced the amendment to the state’s constitution contained in Proposition 8; however, when the time came to defend it, they refused to do so in violation of their constitutional oath.

This left a lacuna in the conventional mechanism for defending a lawfully promulgated state law, so the petitioners/proponents in Hollingsworth stepped in. We all need to be mindful that the petitioners were also the proponents of Proposition 8 [hence my use of the term “petitioners/proponents] who, under the laws of California, were analogous to legislators who might have otherwise been involved in the promulgation of the state’s laws including amendments to its constitution. When the Federal District Court allowed the petitioners/proponents to intervene in the Federal proceedings, it did so conscious of the fact that the governor and attorney general failed in their constitutional duty to protect the constitutional amendment. But it is crucial to recall that the petitioners/proponents of Proposition 8 were not mere citizens asking the Federal judiciary to recognize them as substitute defenders; rather, they were the initiator-proponents of the amendment who were the very people who worked long and hard for the crafting of its language, for the seeking of signatures to place their initiative on the ballot, and for the advocacy essential for its passage by the general population of citizen-voters. Without the efforts of the petitioners/proponents, there would have been no Proposition 8 and no amendment to the state’s constitution regarding the use of the term “marriage.”

When the state officials lawfully charged with the legal duty to defend the state’s constitution in the Federal challenge to its legality failed to do so, the petitioners/proponents stepped in. At first, no questions about their status, and therefore their standing, were raised. However, the Ninth Circuit eventually raised a concern about the petitioners/proponents status, and certified a question presented to the California Supreme Court: whether the official proponents of the successful amendment to the state constitution now being reviewed by the Federal judiciary “either had a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty failed to do so.” [Italics are those of Araujo]

As the majority opinion in Hollingsworth conceded, the California Supreme Court agreed to decide this question posed by the Ninth Circuit in all its elements. In addressing all of the charge, the state’s supreme court “answered in the affirmative.” This means that the petitioners/proponents had the particularized interest to defend the legality of their amendment; or, they had the authority to stand in the place of the state officials to uphold the amendment’s validity thereby enabling them “to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refused to do so.”

Notwithstanding this particular interest of the petitioners/proponents and the authority granted to them by the highest tribunal of California, the majority in Hollingsworth concluded that the petitioners/proponents did not have standing before the Federal judiciary.

Put simply and with great respect for the members of the majority, this conclusion of law is wrong.

The fact that the petitioner proponents were the parties responsible for amending the state’s constitution from the beginning to the end of the legal process distinguishes them from simply being members of the general citizenry who also have an interest in the defense of the state’s laws. Without the efforts of the petitioners/proponents, there would have been no state law upon which the plaintiffs seeking invalidation of the amendment could have complained. In short, there was a case and controversy solely and directly attributable to the efforts of the petitioners/proponents. A challenge to their efforts and only their efforts led to a personal and tangible harm because the very fruit of the labor of the petitioners/proponents was invalidated by the Federal courts who concluded that the law for which they, the petitioners/proponents, were solely responsible for making into a reality was invalid. Again, without their arduous toil, there would have been no constitutional amendment to invalidate. In essence, the invalidation of their work was both personal and tangible to them and constituted a real harm because their effort and only their effort was annihilated by the strokes of several judicial pens.

The majority in Hollingsworth asserted that parties to the Federal review of this state constitutional amendment “did not contest that the respondents [the opponents of Proposition 8] had Article III standing to do so.” But neither did anyone object to the petitioners’/proponents’ status regarding standing until the Ninth Circuit ordered the parties in Hollingsworth to address the standing issue (see p. 3, slip opinion). However, the concerns of the Ninth Circuit were addressed, as mentioned earlier, when the state supreme court answered in the affirmative the status of the petitioners/proponents.

It is relevant to take note of what the California Supreme Court said in responding to the Ninth Circuit. In general it stated:


Thus, in an instance—like that identified in the question submitted by the Ninth Circuit—in which the public officials have totally declined to defend the initiative’s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution (hereafter article II, section 8) and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state’s interest in the initiative's validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.


More particularly with regard to the petitioners/proponents in Hollingsworth, the California Supreme Court further concluded that:


[W]e respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so. [Italics added]



Yet the majority in Hollingsworth concluded that the petitioners/proponents did not have a “direct stake” in the Federal proceedings’ outcome in spite of their interest to protect their lawful efforts in seeking and achieving a constitutional amendment for which they were solely responsible.  The majority contended that the petitioners/proponents only raised a “generally available grievance about government.” This is incorrect when one carefully examines all of the state supreme court’s answer to the certified question regarding standing presented by the Ninth Circuit.

The majority further contended that the petitioners/proponents only had a “unique, special, and distinct role in the initiative process.” But there is more to this role that needs to be considered. The petitioners/proponents also satisfied the need for having the authority and responsibilities for asserting California’s interest in the amendment’s validity which, in the words of the California Supreme Court not further relied upon by the majority, “enable[d] them [the petitioners/proponents] to defend the constitutionality of the initiative… when the public officials charged with that duty refused to do so.”

Hence, the petitioners/proponents were not simply “concerned bystanders.” They were authorized by the State of California to do what they did; therefore, they had standing to prosecute the appeal since they were deputized to defend the state constitutional amendment in view of the fact that the governor and attorney general, in violation of the duties of their office, refused to do so. The Hollingsworth majority discussed at length the principles of Karcher v. May (1987) in which the Supreme Court of the United States acknowledged that the New Jersey speaker of the state house of representatives and the president of the state senate had standing to vindicate the validity of a challenged state law when the state attorney general declined to defend the law in a legal challenge. However, the Hollingsworth majority note that, also under Karcher, the house speaker and senate president lost their standing when they failed to be reelected to their legislative leadership positions as speaker and president, respectively.

In the estimation of the Hollingsworth majority, the petitioners/proponents of Proposition 8 are similarly situated to the former legislative leaders in Karcher because they only had the authority to assert the state’s interest in the initiative’s validity. But, in fact, they had more: they also had the duty, per the ruling of the state supreme court, to defend the constitutional amendment when the governor and attorney general refused to do so. For some reason not well explained if explained at all, the Hollingsworth majority analogized the status of the petitioners/proponents to the status of the New Jersey speaker of the house and president of the senate who lost their standing when their lost their leadership offices. Such is not the case with the petitioners/proponents who retained their right “to defend the constitutionality” of the amendment “when the public officials charged with that duty refused to do so.” This included the right to represent the state on any appeal of lower court decisions. As the typical state officials charged with this duty were not willing to defend the state’s “cognizable interest” resident in the constitutional amendment, the state supreme court acknowledged with great clarity that the petitioners/proponents were competent to defend the state’s interests at all levels of judicial proceedings.

This is a substantive distinction from the situation in Karcher. While the Hollingsworth majority recognized that California has the capacity “to vindicate [such] interests [by] designat[ing] agents to represent it in Federal court,” it failed to see that California had done precisely this in conferring this authority on the petitioners/proponents to have standing so that a legally promulgated amendment to the state’s constitution could be defended when those normally charged with the responsibility refused to do so at any and all stages of judicial proceedings.

The status of the petitioners/proponents in Hollingsworth is also different from that in the case of Arizonans for Official English v. Arizona. (See slip opinion at p. 13) In Arizona, it was the Ninth Circuit by itself that concluded that a non-government party could be substituted for the governor when the governor chose not to appeal the case. In Hollingsworth, things are substantively different: it was the Ninth Circuit that began the inquiry, but it was the decision issued by the state supreme court in response to a certified question presented by the Federal appellate court that carried the day. In Arizona, there was no such declaration by competent legal authority determining the status of the committee “to defend, in lieu of public officials, the constitutionality of initiatives made law of” Arizona. In Hollingsworth, the majority disregarded the crucial fact that the petitioners were authorized to act as agents of the state when they were given the specific charge by the California Supreme Court to defend the constitutional amendment and “to appeal any judgment invalidating” the amendment “when the public officials charged with that duty refuse[d] to do so.”

Thus the interest of the petitioners/proponents was not “a generalized one” as the Hollingsworth majority stated. Rather their interest was based on an official and specific obligation imposed by the highest tribunal of the State of California which has the authority to determine, as it has in the past, who, if anyone, can defend the state’s constitution when the governor and attorney general decided to abandon their constitutional duties. Furthermore, the petitioners/proponents were not only acting under this charge, they were also taking measures to protect their initiative which would never have become a part of the law of California if they had not done what they did in securing their initiative’s passage and incorporation into the laws of the state.

Analogies are important in the law and one needs to be applied here: the petitioners/proponents of Proposition 8 were, in effect, serving as a legislative body operating under the laws of California seeking to amend the state’s constitution. When their amendment became of part of the law of the state, they also had been charged by the State of California’s highest tribunal to defend that law and seek appeal of any declaration that the law was invalid because those normally bearing this responsibility abandoned their duty.

The grievance of the petitioners/proponents was not a generalized one or simply that of a taxpayer’s complaint; rather, it was the case and controversy that properly belonged to very group of persons whose sole efforts enabled the Federal courts to declare the product of their work unconstitutional.

Consequently, the petitioners/proponents were aggrieved by the District Court and the Ninth Circuit decisions on the merits. Their injury was personal and tangible, and the lower Federal court decisions were adverse to their very clear and specific activity that made an idea into law. If this does not satisfy the grounds for standing, I doubt that much else could.


RJA sj

June 27, 2013 in Araujo, Robert | Permalink

A Freedom-of-Religion Question

An MOJ reader asks:

Assume that in a state that grants access to civil marriage to same-sex couples the law requires all employers (including private employers) who employ more than a specified number of persons to make health insurance benefits available not only to its employees but also to the the families of its employees--including, of course, spouses.  Does it violate a Catholic employer's religious freedom to require the employer to make health insurance benefits available to the same-sex spouse of an employee?

June 27, 2013 in Perry, Michael | Permalink | Comments (23)

G.K. Chesterton's Nightmare

Philip Jenkins' essay on terrorism and the intellelgience community will be of interest to some of our readers.

It starts:

Thirty years ago, a British newspaper took an unscientific survey of current and former intelligence agents, asking them which fictional work best captured the realities of their profession. Would it be John Le Carré, Ian Fleming, Robert Ludlum? To the amazement of most readers, the book that won easily was G.K. Chesterton's The Man Who Was Thursday, published in 1908.

This was so surprising because of the book's early date, but also its powerful mystical and Christian content: Chesterton subtitled it "a nightmare." But perhaps the choice was not so startling. Looking at the problems Western intelligence agencies confront fighting terrorism today, Chesterton's fantasy looks more relevant than ever, and more like a practical how-to guide.

June 27, 2013 in Scaperlanda, Mike | Permalink | Comments (0)

Wednesday, June 26, 2013

Lawlessness cuts more than one way

The Catholic bishops in the United States need better guidance and more prudence. The USCCB's statement earlier today regarding the Supreme Court decisions in Windsor and Perry includes the following sentence:  "It is also unfortunate that the Court did not take the opportunity to uphold California’s Proposition 8 but instead decided not to rule on the matter."  Why?  Chief Justice Roberts's opinion makes clear that the Court understood itself *not* to have had lawfully before it the "opportunity" to uphold Proposition 8. Reasonable minds can disagree about whether or not the Court should have found that there was standing in Perry, and thus an "opportunity" to reach the merits, but Chief Justice Roberts and Justices Scalia, Ginsburg, Breyer, and Kagan determined that standing was lacking.  On what basis, then, does the USCCB rebuke the Court for refusing an "opportunity" that the USCCB assuredly cannot demonstrate that the Court possessed?  "Conservative" complaints about so-called "judicial activism" ring hollow when judged against such "activist" grievances.      

June 26, 2013 in Brennan, Patrick | Permalink