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.

Wednesday, March 26, 2014

"Hobby Lobby" symposium at The Conglomerate

I cannot recommend highly enough the ongoing symposium (putting aside my own contribution) about the Hobby Lobby case at The Conglomerate.  Run, don't walk, to check it out. 

March 26, 2014 in Garnett, Rick | Permalink

Tuesday, March 25, 2014

Reflections from the Oral Argument: On the Establishment Clause Claim

It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 ("Now what--what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?").

On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:

Justice Alito: Well is it your argument that providing the accommodation that's requested here would violate the Establishment Clause

General Verrilli: It's not our argument that it would violate the Establishment Clause. But it is our argument that you--in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.

43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That's the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: "[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties." 44

Of course, that the government disavows a claim does not mean that the Court can't go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he "would suggest that we think about the position and the rights of the--of the employees[.]" Justice Kennedy then remarked that "the employees are in a position where the government, through its healthcare plans is...allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious--religious beliefs of the employer. Does the religious beliefs just trump?" 33

After a response from Mr. Clement, here's what Justice Ginsburg said:

But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn't override other significant interests. And that was true of Sherbert and that was true of Yoder. The--and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.

34 Later in the discussion, Justice Kagan referred specifically to the "tangible harm[]" that women will suffer who don't get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.

March 25, 2014 in DeGirolami, Marc | Permalink

Happy Feast of St. Dismas!


I know, you thought it was just the Feast of the Annunciation.

March 25, 2014 | Permalink

The Scholars' Mississippi Letter: RFRAs in General Are Now Bad

Several days ago, Michael posted the letter from several legal academics opposing the proposed Mississippi RFRA (religious freedom restoration act; the latest proposed text, which has now been tabled, is here). I've meant to write a responsive post but have been slow in doing so. The opposition to the Mississippi bill grows out of the intense reaction to the earlier Kansas and Arizona bills. Here is another article likewise lumping together Mississippi and Kansas (because after all, these bills all come from red states and from legislators unsympathetic to gays and lesbians: "Can anything good come from Mississippi?"). But the opposition to Mississippi's bill crosses a new threshold. It essentially says that it's bad, period, to enact a RFRA, a general rule that substantial burdens on religious freedom must have a strong justification.

As Paul Horwitz notes today, the increasing per se opposition to RFRAs reflects a substantial breakdown of consensus among Religion Clause scholars. My claim is that the opposition to Mississippi's proposal is counterproductive even from the progressive premises that motivate many of the opponents.

The scholars' letter primarily argues that the Mississippi RFRA would send a message that commercial businesses might be exempt from anti-discrimination laws. As in Kansas and Arizona, the focus is on exemptions that would undermine civil rights laws protecting gays and lesbians. But here's the problem: even assuming that RFRAs have any such effect (which is itself highly doubtful), MIssissippi does not have gay-rights laws for a RFRA to undermine (and likely won't in the near future). There is no state law against sexual-orientation discrimination. There are no local laws: as the letter notes, three cities have passed resolutions condemning discrimination, but these are non-binding. The only hypothetical the letter can conjure up involving an actual Mississippi law is wildly implausible. The state "conscience clause" that protects doctors from having to perform procedures that violate their conscience also says that they cannot refuse to treat a patient because of his/her sexual orientation; so the letter hypothesizes that the state RFRA might allow a doctor to simply refuse on religious grounds to treat a gay patient who has AIDS. The letter gives no evidence (because, I expect, there is none) that any doctor has ever made such an objection, let alone successfully. In short: whatever the motivations of the bill's proponents (I do not vouch for their attitude towards gays and lesbians), the Mississippi RFRA would make no difference in the area of gay rights and religious objections.

For critics of the bill, that's one of its many problems. They say that to pass religious-freedom protection, even in the form of a general statute, when objectors to gay rights don't need it is just a mean-spirited slap at gays and lesbians. But if we consider it a little longer, it seems to me, the conclusion should be the opposite.

Whatever the authors' subjective intentions, the far more likely effect of a Mississippi RFRA would be to protect religious minorities, many of them non-Christians, against laws passed in a state whose officials have frequently shown indifference or hostility to minorities. These cases ought to matter far more to liberals than the completely hypothetical conflicts with nonexistent civil-rights laws. RFRAs make a difference because they replace the narrow free-exercise rule of Employment Division v. Smith with a standard that requires the government to offer a strong reason for imposing substantial restrictions on religious practice. In a listserve post, Professor Chris Lund, probably the leading expert on state RFRAs, has cataloged a number of cases in which they have protected religious minorities: for example, "the Native American student who got the right to wear his hair long in A.A. v. Needville Indep. School Dist., 611 F.3d 248 (5th Cir. 2010), the Santeria folks who got to continue their religious rituals sacrificing animals in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), the Jehovah’s Witness who got a bloodless liver transplant that was necessary to keep her alive in Stinemetz v. KHPA, 252 P.3d 141 (Kan. App. 2011)."

There are other cases that were not decided directly under a state RFRA but whose facts could easily recur in Mississippi and in which the state RFRA would likely be crucial to protecting either a religious minority or a religious practice with which progressives should sympathize. In next-door Alabama, the state's draconian law against assisting illegal immigrants was challenged by Catholic, Protestant and other social-service ministries; they had a far better chance of prevailing under Alabama's RFRA than under the Smith rule. The Newark, NJ police department enforced a no-beard rule against a devout Muslim officer for doubtful reasons; the same situation could easily happen in Mississippi, and if so the officer would have a much stronger argument under a state RFRA than under Smith. When a deceased Hmong man was autopsied by a Rhode Island coroner, the family was deeply distressed because they believed the autopsy imprisoned their loved one's soul: but a district judge, after first ruling for the family, then reversed himself under Smith without regard to whether the coroner had a good reason for the autopsy. I've no doubt that if and when Hmongs settle in Mississippi, they could face the same kind of unnecessary imposition from indifference or hostility.

We should judge a proposed law by what its text would do in the legal context, not by the motivations (or  perceived motivations) of its sponsors. The actual effect of a newly enacted RFRA in a state like Mississippi, it seems to me, would be quite different from the picture that was painted.

I want to be clear about the distinctions I see among the recent "religious liberty" bills, because I think the critics have now blown past important differences as they oppose RFRAs wholesale. In my view, the Kansas bill that focused on objections to gay marriage was terrible: it gave no weight to the interests of same-sex couples and was indeed a symbolic slap at them because Kansas has no sexual-orientation nondiscrimination laws from which objectors even arguably needed protection. Unlike a general RFRA statute, the Kansas bill covered only the specific situation and thus provided no religious-freedom benefits in any other situation. I can also understand, while not necessarily agreeing with, people who attacked the amendments to Arizona's state RFRA. Those amendments took a statute  already protecting various religious minorities and added language expllicitly covering claims by for-profit businesses and in claims lawsuits by private parties. If you oppose all exemptions for for-profit businesses, then it made sense to oppose the amendments.

But with the Mississippi bill, we saw opposition to the enactment of a state RFRA in the first place, a statute that will change or clarify the law to protect a wide range of potentially sympathetic religious-freedom claims like those above. And the opposition to the bill rests on hypothetical threats to nonexistent state and local civil-rights laws. I believe that many of the signers of the letter opposing this RFRA value religious freedom in general. But when such utter speculation about nonexistent gay-rights disputes overrides the benefits of protection for minority faiths in many other cases, the result is to dismiss the free exercise of those faiths as quite unimportant.

(All this is water under the bridge for now: the Mississippi proposal is tabled, and politically this is an impossibly toxic time to propose a state RFRA. But I hope the time will come when we can again consider RFRAs on their real merits.)

March 25, 2014 in Berg, Thomas | Permalink

World Vision Will Hire Gay Christians in Same-Sex Marriages

The U.S. branch of World Vision, the major evangelical relief agency, is changing its policy and opening itself to hiring professing Christians who are in legally recognized same-sex marriages. This almost certainly presages future moves by other traditionally oriented organizations, as well as the arguments that will increasingly ground those moves. From Christianity Today:

Given that more churches and states are now permitting same-sex marriages (including World Vision's home state of Washington), the issue will join divorce/remarriage, baptism, and female pastors among the theological issues that the massive relief and development organization sits out on the sidelines....

"Changing the employee conduct policy to allow someone in a same-sex marriage who is a professed believer in Jesus Christ to work for us makes our policy more consistent with our practice on other divisive issues," [president Richard Stearns] said. "It also allows us to treat all of our employees the same way: abstinence outside of marriage, and fidelity within marriage."

March 25, 2014 in Berg, Thomas | Permalink

Hobby Lobby and Conestoga Wood as ordinary cases

The Hobby Lobby and Conestoga Wood cases being argued this morning are important. But in my view they are not "extraordinary cases," which is Richard Fallon's term for those cases in which "no existing doctrine resolves the issues before the Court" or "a majority of the Justices believes that existing doctrinal structures must be reassessed in light of more fundamental concerns." (Fallon, Implementing the Constitution at 134-35.) At the risk of appearing unappreciative of legal complexity or difficulty, I'll share my boring bottom-line assessment of the likely outcome and reasoning in Hobby Lobby and Conestoga Woods: These cases will be doctrinally uninteresting losses for the government.

In order to rule for the challengers, which is how I expect a majority of the Justices will rule, the Justices will need to decide three issues:

(1) Can either the companies or their owners assert a claim under RFRA?

(2) Is the threat of massive fines for the companies' offering of health coverage that excludes certain drugs and devices for reasons of religious conscience a substantial burden on the companies' or their owners' exercise of religion?

(3) Has the government satisfied strict scrutiny?

If a majority of the Justices gets to issue (3), it is hard to see how the government can win. The government did not even try to take into account the religious beliefs of challengers like these in their regulatory implementation of the statutory preventive services mandate. There are a variety of ways for thinking about the right way to answer (1) and (2), some of which would require the Supreme Court to address novel questions. But there are also simple ways of resolving these issues in the challengers' favor.

With respect to who can assert a claim here, the Court could straightforwardly reason that "person" in RFRA includes a corporate person, and that there is no limitation on which kinds of corporate person may assert a claim, as long as that person may engage in the exercise of religion. And in this context, "exercise of religion" means nothing more than a religiously based act or refusal to act. With respect to substantial burden, there seems little difficulty finding this present in the threat of massive penalties for these companies' religion-based decision to offer non-compliant health coverage that excludes no-additional-cost coverage of various drugs and devices.

Given all the commentary generated by these cases already, with much of it focusing on novel or difficult issues, my assessment in this post is admittedly contrarian. Am I confident that a majority of Justices will follow the relatively uninteresting path through the issues in these cases? That is probably too strong a word. But while the Supreme Court retains the ability to surprise and confound, sometimes the legal path of least resistance is the path a majority is most likely to follow. 

March 25, 2014 in Walsh, Kevin | Permalink

Monday, March 24, 2014

Mark Latkovic's new blog

Mark Latkovic (the distinguished moral theologian at Sacred Heart Major Seminary) has a new blog that should be of interest to readers of MOJ. Here is a link to a recent post marking the 50th anniversary of Germain Grisez's book "Contraception and the Natural Law." http://mlatkovic.wordpress.com/2014/02/07/germain-grisezs-contraception-and-the-natural-law-at-fifty/  

March 24, 2014 in Myers, Richard | Permalink

Saturday, March 22, 2014

The Abortion Cases, Revisited

I just posted a paper to SSRN that will be of interest, I think, to some MOJ readers.  The paper is available here.  The abstract:

In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.

Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs—Human Rights Watch—has answered in the affirmative.

Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?

Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court—five justices—refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The conclusion I reach in this paper—that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted—is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment—with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court. . . . Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States”—discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. A list of the papers is available here.

March 22, 2014 in Perry, Michael | Permalink

Friday, March 21, 2014

Happy World Down Syndrome Day!

Celebrate with us the presence of that third chromosome # 21 (3/21) by watching this beautiful message to a new mom: http://chzb.gr/1fDgS43 .

March 21, 2014 in Schiltz, Elizabeth | Permalink

Thursday, March 20, 2014

How would Bottum explain the Justice Kennedy of Casey, Lawrence, and Windsor?

Thanks to Rick for the link to David Goldman's book review of Joseph Bottum's An Anxious Age: The Post-Protestant Ethic and the Spirit of America. A question prompted by the review: How would Bottum explain Justice Kennedy? More precisely, how would Bottum explain Kennedy's opinions in cases like CaseyLawrence, and Windsor? I ask because these opinions appear to exhibit the features of the post-Protestant secular religion that Bottum discusses, but Kennedy seems more post-Catholic than post-Protestant. 

In their rhetoric at least, Kennedy's opinions in CaseyLawrence, and Windsor exhibit "a sense of the sacred, but one that seeks the security of personal salvation through assuming the right stance on social and political issues." They exude "a self-perpetuating spiritual aura," and they reflect "social and political ideas elevated to the status of strange divinities . . . born of the ancient religious hunger to perceive more in the world than just the give and take of ordinary human beings, but adapted to an age that piously congratulates itself on its escape from many of the strictures of ancient religion." These opinions of Justice Kennedy's are recognizable for "the glory and the annoyingness of their moral confidence and spiritual certainty." 

These are all features of the secular religion that Bottum attributes to the "perpetuation of Protestant attitudes in secular form." But there is something genealogically Catholic in at least some of the rhetoric of these Kennedy opinions. (For a pre-Windsor discussion of rhetorical similarities among Casey, Lawrence, Dignitatis Humanae, and various other documents of Catholic social teaching, see Frank Colucci, Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty.) How might Bottum explain these aspects of Justice Kennedy's judicial output? How should we? Might there be consonance between Bottum's understanding and Christopher Ferrara's

March 20, 2014 in Walsh, Kevin | Permalink