Tuesday, January 28, 2014
The Democrats for Life of America and former Rep. Bart Stupak have filed an amicus brief (PDF file, link, press release) in the Supreme Court in the Hobby Lobby and Conestoga cases (as we did in the courts of appeals). Our brief focuses on the fact that the individuals and businesses here object to drugs and devices (emergency contraceptives and IUDs) that they colorably fear may act to cause abortions by terminating new embryos before implantation in the uterus. From their distinctive perspective as supporters of the overall health-care law, the amici make several points (here from the summary of argument):
I. . . . Conscientious objections to abortion carry especially strong weight in American law because they fall within our tradition of protecting objectors from participating in actions that the objectors believe unjustly take human life—actions that include assisted suicide, abortion, capital punishment, and war. For this reason, although health-care conscience laws cover religious and moral objections to several procedures, protections for conscientious objection to abortion are particularly strong.
More specifically, laws protecting conscience rights for those objecting to abortion are not limited to individuals or to non-profit or religious organizations. Instead, the right not to facilitate or support abortions typically protects a wide range of objectors, regularly extending to individuals engaged in for-profit commerce and to for-profit businesses.
Finally, our tradition protects objectors to abortion far beyond the case of direct involvement in the performance of the abortion. . . .
II. Although the government has made statements that terminating a fertilized embryo before it implants in the uterus is not an abortion, the relevant matter for the claim of conscience under RFRA [the Religious Freedom Restoration Act] and the First Amendment’s Free Exercise Clause is plaintiffs’ belief that a distinct human life begins at fertilization. It is no salve to plaintiffs’ conscience to be told that the government defines abortion differently. Furthermore, plaintiffs have a colorable cause for concern that the drugs and devices to which they object may act to terminate embryos.. . .
III. . . . Protections for objections to facilitating abortion have extended to multiple categories of for-profit entities and individuals engaged in commerce, and to many kinds of indirect facilitation, including mandatory coverage of abortion in insurance plans. When impositions are repeatedly prohibited under various conscience provisions, they cannot be dismissed as “insubstantial” burdens under RFRA. Therefore, this Court should find that the mandate substantially burdens plaintiffs by requiring them to cover methods they fear may act to terminate an embryo after fertilization.
Some of you may also be interested in this blog post of mine on Democrats for Life's interventions in pro-life litigation, interventions aimed distinctively at "ensuring that the law protects whole-life principles and the conscience of pro-life Americans."
Today is the filing deadline for amicus curiae briefs in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius. Yesterday, my co-counsel and brother filed an amici curiae brief that we co-authored with excellent lawyers at McGuireWoods on behalf of eleven Senators and four representatives who voted to enact RFRA in 1993 and remain in Congress today. The group of signatories is led by Senator Orrin Hatch (R-UT), a current member and former chairman of the Senate Judiciary Committee who shepherded RFRA through the Senate as the lead Republican sponsor together with Senator Ted Kennedy as the lead Democrat sponsor. The signatories also include the current and immediate past chairmen of the House Judiciary Committee (Rep. Bob Goodlatte and Rep. Lamar Smith).
As with any amicus brief in a case (actually two cases) that will attract many such briefs on both sides, it is important to have a distinctive offering that does not simply repeat the contentions of the party or parties being supported. In addition to emphasizing RFRA's blanket provision of a single (statutorily defeasible) standard for protecting the exercise of religion, our brief highlights RFRA's operation as a statutory standard that the government was required to implement together with the ACA when it was regulating. RFRA is sometimes thought to be nothing more than a liability rule to be enforced judicially. But RFRA is more than that. Absent a later statutory exclusion, RFRA governs the implementation of all federal law. This means that the Departments of Health & Human Services, Treasury, and Labor were obligated to follow RFRA when they crafted their exemption and accommodation arrangements for the contraceptives coverage mandate. As the brief details, however, the regulatory process failed to take adequate account of RFRA, which came into the regulatory picture only as a result of the "vicissitudes of political controversy" that RFRA was designed to avoid. The government's sidelining of RFRA can be seen in the rules' reliance, first, on state-law models, and later on Title VII's narrower religious employer provision, when designing their exemption and accommodation arrangements. The reliance on state-law models was particularly inapt given that RFRA does not apply to state law.
January 28, 2014 | Permalink
Monday, January 27, 2014
Virginia Attorney General Herring's Disappointing Decision to Attack Virginia's Constitutional Provision on Marriage
I was disappointed but not terribly surprised by last week’s news that Virginia Attorney General Mark Herring would reverse the Commonwealth’s litigation position in Bostic v. Rainey and attack in federal court the Virginia Constitution’s limitation of marriage to one man and one woman.
Among other things, the move reinforces the notion that law and politics are indistinct. Before the election, Virginia’s Attorney General defended the Virginia Constitution; now after the election, Virginia is attacking the Virginia Constitution. Nothing in the applicable constitutional law has changed since the election. One might argue, I suppose, that elections have consequences. But is this the kind of consequence that last November’s election should have? After all, Candidate Herring refused to say what Attorney General Herring would do on this issue if elected. It is hard to avoid thinking that Candidate Herring was less than candid.
Some helpful resources for thinking about the duty to defend (albeit based on federal law rather than Virginia law) are a Federalist Society podcast on “The Government’s Duty to Defend the Law in Court” (featuring John Baker, Walter Dellinger, John Eastman, and Dean Reuter) and HLS Prof. Dan Meltzer’s Duke Law Review article, “Executive Defense of Congressional Acts.”
Meltzer’s analysis is particularly interesting because it is informed by his executive branch experience as principal deputy counsel to the president in 2009 and 2010 when the question of defending “Don’t Ask, Don’t Tell” was being considered. He sees a value in the regular executive practice of defending statutes against constitutional attack even when the executive has constitutional concerns about a particular statute. And he argues that several features of contemporary constitutional litigation threaten to unravel this practice: “In a world featuring an extremely broad range of views about proper constitutional interpretation, partisan correlates to those views, a powerful temptation to equate what is misguided or immoral with what is unconstitutional, increased polarization of the political parties, and a lack of commitment to the idea of judicial restraint, decisions not to defend or enforce have the capacity to contribute significantly to the unraveling of the executive branch’s practice of defending federal statutes.”
January 27, 2014 | Permalink
Yes, we do. Happy Catholic Schools Week! As fmr. Gov. Jeb Bush writes:
The Ma Bell model of public education has failed.
Parents want better options. That is why more than 6,000 charter schools are serving about 2.3 million students. More than a half-million children are on waiting lists. In our urban centers, there is a glut of space in schools that parents don’t want and a dire shortage of space in schools they do want.
And there’s a reason for that. The children who benefit most from choice are disadvantaged students who are losing out in traditional public schools.
As I wrote, at Public Discourse a little while back, this is a matter of "simple justice."
From 2012: A punchy essay by Archbishop Chaput. A bit:
We can honor Catholic Schools Week this year by actually doing something about the fiscal problems hurting our schools. We need to press our lawmakers, respectfully but vigorously, to pass school choice.
First, we need some clarity: School vouchers do not mean “government support for religious schools.” That argument is flatly false. No vouchers go to any school, religious or otherwise. Vouchers do, however, return the power of educational choice to parents, where it belongs. In doing so, vouchers make all schools more accountable for the quality of education they deliver. Parents get the voucher. Parents choose the school. This makes perfect sense. And if a school offers a poor education for young people, parents will rightly vote with their feet — and their vouchers. Of course, most Catholic schools do the opposite: They offer a strong education, in a safe environment, with a focus on developing good moral character. That’s why parents are so upset when they close.
First Lady's "Catholic Schools Week" remarks
I am a big fan of Catholic schools. Every parish should have one, every Catholic kid should be in one. I also love Notre Dame's "Alliance for Catholic Education" program. So, maybe it's no surprise that I liked this, First Lady Laura Bush's recent remarks at Holy Redeemer Catholic School, in Washington, D.C.:
. . . This is Catholic Schools Week, and that's one of the reasons why I'm here today. It's the perfect time to recognize the contributions that Catholic schools make to students all across our country. Students here at Holy Redeemer are among the 2,300,000 students in the United States who are currently attending Catholic schools. The education you're receiving builds on a tradition of academic excellence older than the United States itself, dating back nearly four centuries.
Today, 99 percent of Catholic-school students graduate from high school -- and 97 percent go on to college. That's an unbelievable record, so congratulations to everyone. (Applause.) But just as Archbishop Wuerl said, not only do Catholic educators develop young minds, but they also prepare children for lives of compassion and service.
The Catholic-school tradition is based on the belief that every child is blessed with unique gifts, and every child has unlimited potential -- regardless of that child's status or race or even faith. In fact, 27 percent of the children attending Catholic schools in Washington aren't Catholic. As the legendary Cardinal Hickey, Washington's Cardinal Hickey once explained: "We don't educate children because they're Catholic, but because we're Catholic."
Catholic schools can offer a choice to parents who want a good education for their children. In 2004, President Bush signed the D.C. Choice Incentive Act, which established Washington's Opportunity Scholarships for children. Over the last four years -- with the support of Congress and leaders in local government -- Opportunity Scholarships have helped more than 2,600 children attend private or parochial schools. More than 80 of these children on Opportunity Scholarships are here at Holy Redeemer. (Applause.)
With these scholarships, Washington students can transfer from underperforming public schools to a private or faith-based school of their choice. Parents of children in the scholarship program report being more satisfied and involved with their child's education. And studies show that the students who receive Opportunity Scholarships improve their own attitude toward learning.
On Monday, in his State of the Union address, President Bush announced two new ways to increase educational options for parents and children. The $300 million Pell Grants for Kids program will offer scholarships to low-income children in underperforming elementary and secondary schools. Children can use these scholarships to attend out-of-district public schools, or nearby private or parochial schools.
Since the year 2000, more than 1,000 Catholic schools have been closed or consolidated -- most of them in urban areas. To help reverse this trend, President Bush also announced the White House Summit on Inner-City Children and Faith-Based Schools, which will take place in the spring. The summit will bring together educators, community leaders, philanthropists, and business leaders. Together, they'll work to raise awareness of the service that non-public schools provide to urban students. And they'll work to find ways to keep schools open, so that parents in the inner cities can have educational options for their children.
Members of the Catholic family, too, are coming together to help children in need. Here in Washington, the archdiocese has formed educational partnerships with companies, community groups, and other Catholic schools. One of these partnerships is the Magnificat program here at Holy Redeemer.
Just last year, financial shortages had placed Holy Redeemer on a list of imminent school closings. But through the Magnificat program's partnership with Notre Dame, over the next five years, Notre Dame University will work with Holy Redeemer faculty, staff, and students to improve the school. Notre Dame is providing technology, textbooks, and supplies. The University will help Holy Redeemer improve its financial planning, and increase its parental involvement.
Enthusiastic educators from Notre Dame's Alliance for Catholic Education will join Holy Redeemer's outstanding teacher corps. The Alliance for Catholic Education prepares talented college graduates to teach in rural or inner-city Catholic schools. Through two years of teaching, and by attending summer sessions at Notre Dame, these teachers also earn their master's degrees in education.
After they receive their city assignments, ACE teachers often share apartments or homes. They establish a strong community with each other, and then they bring this sense of community into their schools. ACE teachers coach sports teams. They direct choirs and school plays. They run marathons to raise money for Catholic schools. As they help their students build a superb academic foundation, ACE teachers are answering God's call to share their talents with those who need them. . . .
Through the Magnificat program, ACErs and the entire Holy Redeemer community are transforming your school. Observers say that students' behavior has improved, and that you're able to focus more on learning. Notre Dame alumni have rallied around the school. One alumnus took the 8th-grade class on a field trip to a local book festival. This summer, 40 Notre Dame alumni cleaned classrooms, painted hallways, and planted in the yard. Notre Dame alumni host events to raise money for the Holy Redeemer scholarship fund. . .
Congratulations on Holy Redeemer's new partnership with Notre Dame. I wish you the very best for Catholic Schools Week and for many, many more years of success at Holy Redeemer. Thank you all, and God bless you. (Applause.)
Friday, January 24, 2014
Late this afternoon, the Supreme Court issued the following order in the Little Sisters of the Poor case:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
(The title of this post comes from the title of the Becket Fund's press release on the order.)
I was recently struck by an event that has the press of my home state—and the nation—buzzing with news of scandal. Highlighting Wisconsin’s improving economy, in his State of the State speech Governor Scott Walker publicly acknowledged a number of workers, including Chris Barber, a welder whose superior performance as a seasonal worker led his employer to offer him a permanent job. Cool, right?
Apparently not. An “expose” by the Milwaukee Journal-Sentinel revealed on Wednesday that Barber is “a registered sex offender with two felonies and three drunken-driving offenses.” When confronted with information about Barber’s criminal record, Governor Walker’s spokesman quickly replied that, “[o]bviously, if we had been aware of this individual's prior convictions, he would not have been invited to participate.” That disclaimer did not stop the state’s Democratic gubernatorial candidate, Mary Burke, from publicly stating that she found it “disappointing that the governor isn't vetting people who he's holding up as folks we should look up to.”
Criticizing political candidates for having any association, however remote, with convicted individuals isn’t new, and it certainly isn’t partisan. Ever since Michael Dukakis’s presidential aspirations were crushed by his (extraordinarily tenuous) connection to the furlough of Massachusetts murderer Willie Horton, American politicians have avoided all association with criminals, prisoners, and parolees. Often, they have often refused to back legislation or programs that assist such individuals in moving on with their lives after their sentences have ended. Doing so is just too risky. After all, it’s not a coincidence that U.S.A. Today’s coverage of the Wisconsin “scandal” ends by observing that “Walker is considered a potential 2016 presidential candidate.”
What does any of that have to do with law and Catholic thought? A lot, actually. The aftermath of Walker’s shout out to Barker demonstrates that the political process offers slim protection—and precious little consideration—to those who have been convicted of criminal offenses. Rather than celebrate Mr. Barber’s move from prison to full-time, gainful employment, leaders on both sides of the political spectrum are suggesting he is undeserving of recognition—and perhaps even of opportunity.
However offensive Barber’s past conduct may be, the impulse to shun him in perpetuity runs directly counter to Catholic teaching, with its dual emphasis on accountability and reintegration for those who transgress the law. In their seminal statement on criminal justice, the U.S. Conference of Catholic Bishops emphasized that “[j]ust as God never abandons us, so too we must be in covenant with one another. We are all sinners, and our response to sin and failure should not be abandonment and despair, but rather justice, contrition, reparation and return or reintegration of all into the community.” Reintegration has as an essential component access to meaningful labor.
Work is central to our human existence, and the Church has spoken clearly about the dignity and value of labor. In Caritas in Veritae, Pope Benedict observed that “unemployment today provokes new forms of economic marginalization, and the current [economic] crisis can only make this situation worse. Being out of work or dependent on public or private assistance for a prolonged period undermines the freedom and creativity of the person and his family and social relationships, causing great psychological and spiritual suffering.” That marginalization and suffering are particularly acute for those who also bear the stigma of past criminal conviction. Having been punished by their own conduct and by the formal criminal justice system, individuals re-entering society struggle to establish healthy social connections, contribute to their families’ economic well-being, and “make good” by engaging in legitimate labor markets.
Finding work when you have a felony record isn’t easy. Federal non-discrimination laws offer only minimal protection to those with criminal records, and state laws frequently prohibit individuals with past convictions from obtaining licenses even for entry-level jobs like driving buses or cutting hair. When people like Chris Barber find a job and succeed at it, they should be lauded. If our leaders are not willing or able to publicly acknowledge the accomplishments of men and women who are on the path to full reintegration, then something has gone wrong. As people of faith, we need to demand more.
January 24, 2014 | Permalink
Is it irrational specially to protect specifically religious conscience and free exercise? Professor Brian Leiter is half right: From a secularist or even anti-religious perspective – the stance Leiter assumes to be the correct one – special solicitude for religious conscience and free exercise makes little or no sense. On Leiter’s understanding of what defines religion – religion consists of intrinsically “irrational” belief systems, “unhinged” from reason, issuing in categorical demands on action – special accommodation is indeed hard to justify.
. . . This review essay contends that religious belief, at least in certain forms, is entirely rational and reasonable and that the decision of the framing generation to protect specifically religious conscience and exercise is likewise entirely rational.
This difference in philosophical perspectives goes a long way toward explaining the content as well as the premises of American constitutional religious liberty – and why they are hard for postmodern secularists to grasp. Religious freedom only makes full, rational sense on the premise that God exists (or well may); that God’s nature and character is such (or may well be) as to give rise to obligations with respect to human conduct; that the true commands of God, whenever knowable, are, in principle, prior to and superior in obligation to the commands of men; and that human civil society, acknowledging the priority of God’s true commands yet conceding the inability of human institutions to know them perfectly, must accommodate the broadest possible sphere of religious liberty, often including conduct in conflict with society’s usual rules.
UPDATE: And, just to add to the fun, let's not forget Tom Berg's nice response to Micah, "Secular Purpose, Accommodations, and Why Religion is Special (Enough)."
Oh, happy day . . . my copy of Prof. Steven Smith's latest book, The Rise and Decline of American Religious Freedom arrived yesterday. It's a must read for anyone interested in the law-politics-society-faith-religion nexus. Here's a bit from the Amazon blurb:
Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
As Andy Koppelman puts it, on the back cover, this is "one ofthe most important books on religious liberty in years."