Mirror of Justice

Yuval Levin religious liberty article up at EPPC

For those who aren't First Things subscribers, but are interested in reading Yuval Levin's outstanding essay, "The Perils of Religious Liberty," it's now up on the EPPC website. 

Survey: U.S. Christians Face Intolerance, and Complain Too Much About It

An interesting survey, with implications for how Christians speak in public discourse and in particular how they present claims of religious liberty:

A growing number of Americans believe religious liberty is on the decline and that Christians face growing intolerance in the United States.

They also say American Christians complain too much. In agreement: two out of five evangelicals, both when measured by beliefs and by self-identity.

Court asks for more briefing in the Little Sisters case

Here is the Court's order.  Lawyers, pundits, and blog-readers everywhere are wondering what it means.  Until I get the authoritative answer from our own Kevin Walsh, I'm inclined to think -- in the spirit of Sports Illustrated's Peter King, perhaps -- the following:

(1) I infer that Justice Kennedy did not join the Hobby Lobby dissenters (and, perhaps, one of them wobbled, too) on the gov't's argument that this case fails at the threshold (because the "substantial burden" argument is too "attenuated").  I take that as good news for the RFRA regime generally.  While I understand the concern that Doug Laycock and others have raised -- i.e., that requiring "absolute deference" to RFRA claimants' on the "substantial burden" element will undermine religious accommodations generally -- I do not think that the Little Sisters et al. are asking for such deference.

(2) I infer that at least one of the Hobby Lobby dissenters is sufficiently concerned about avoiding a "tie" (in a case where the lower courts are themselves divided) that he or she is willing to at least consider letting the Little Sisters win *if* that can be done without interrupting the "seamless" flow of contraception coverage.  

 

(3) But . . . it does not seem plausible that the government actually has a "compelling interest" in completely "seamless" coverage (as opposed to coverage-without-cost-sharing-via-some-reasonable-means).  I expect at least some of the parties will argue that, if the coverage is provided to their employees, by their insurance companies, by virtue of the fact that the companies and the employees are theirs, then their religious exercise is burdened.  (I could be wrong about this, of course.)  And, I expect at least some of the parties to argue that the existence of the exemption for religious institutions (churches, etc.) puts a heavy burden on the government to show why such an exemption cannot be provided to them.

 

Meanwhile, in news stories and headlines everywhere, the "scare-quoting" of religious freedom continues . . .

 

Dean Bernard Dobranski, R.I.P.

I learned over the weekend about the death of the founding dean of the Ave Maria School of Law, Bernard Dobranski. Here is the notice from Ave Maria.  May God bless him and his family.  R.I.P.

Paul Ryan's challenge

I came across this piece ("Ryan issues challenge to new generation") in America, and thought it was worth sharing.  A bit:

Commenting on the woeful state of national political culture, House Speaker Paul Ryan tried to revive the perhaps flagging idealism of American young people in an address to a bipartisan group of House interns—one that may have also been intended for the ears of exasperated members of his own party. As many in the youthful crowd no doubt struggled to remember or even comprehend the era of bipartisan civility Ryan described, the Speaker assured them it could one day return, and acknowledged that his own deportment in the recent past may not have been exemplary. . .

. . . "I’m certainly not going to stand here and tell you I have always met this standard,” he added. “There was a time when I would talk about a difference between ‘makers’ and ‘takers’ in our country, referring to people who accepted government benefits. But as I spent more time listening, and really learning the root causes of poverty, I realized I was wrong. . . ."

How does the Court avoid a 4-4 split in the Little Sisters of the Poor case?

I've received some skeptical reactions to the concluding assertion in my prior post on the Little Sisters of the Poor case that "it's difficult to see how the government wins." The question on people's minds is how the Little Sisters and their fellow petitioners pick up a fifth vote after Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito. 

This is a fair question. And the fair answer is that I can't say with certainty (nobody outside the Court can!), but the probabilities look good given the various arguments aired and at work in the case.

I start with the assumption that the Justices would like to avoid a 4-4 split on these cases. They've been dealing with some of these cases on their shadow docket for a while now, and they do not want to prolong uncertainty or perpetuate disuniformity. So they want to find a way to avoid an even split if they can. 

Next, any break from 4-4 is most likely to be in petitioners' favor. It's possible that the government loses on substantial burden yet somehow wins on strict scrutiny. But I don't think that's in the cards after considering the briefs and observing arguments.

The government seemingly came in from the lower courts riding high on "no substantial burden," but that position did not fare well in questioning at the Court. Most of the government's arguments accordingly focused on the elements of strict scrutiny: compelling interest and least restrictive means. On these elements, though, the government's arguments and evidence are underdeveloped. 

One of the more interesting developments at oral argument was the government's attempt to avoid several less restrictive means by gerrymandering its claimed compelling interest to exclude them. Chief Justice Roberts picked up on this near the beginning of Solicitor General Verrilli's argument. "Your compelling interest," observed Chief Justice Roberts "is not that women obtain contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners, hired by the Little Sisters. In other words, it seems to me you can't say that what you're trying to do is make sure everybody has this coverage. You want to make sure they have it through the program set up by the Little Sisters, and that's what they object to."

Justice Kagan picked up on the government's contraction of its compelling interest as well. One of her questions for petitioners' counsel limited the universe of accommodations available to those that ran through petitioners' plans: "Is there any accommodation that the government would offer that would in fact result in women employees of your clients, or students of your clients, getting health care as part of an employer-based plan or a student-based plan, getting contraceptive coverage? Is there any accommodation that would be acceptable?"

One problem with the government's approach, as Michael McConnell has noted, is that it is "entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest." And another problem, he further notes, is that the government already expects to serve its interests in contraceptive coverage and other preventive services for many other employees outside of the employer-based health system by using the exchanges. 

Which brings us to the brief by Douglas Laycock that was mentioned by both Justice Kagan and Justice Ginsburg at oral argument. These Justices invoked this brief's arguments when petitioners' counsel pointed to the government's failure to justify the line that the agencies drew between exempt and nonexempt religious organizations.

At least as of the time of their questions, these Justices appeared to have accepted Professor Laycock's argument that scrutinizing this line to see if the government drew its exemption too narrowly would threaten specific religious exemptions. The gist of the argument is that the government won't provide specific religious exemptions at all if judicial scrutiny of their boundaries would result in willy-nilly judicial expansion.

The argument fails, however, if there is a guiding principle for judges to use in assessing the government's decision on the shape of its exemption. And here there are two. 

The first is RFRA itself. When the agencies decided on regulations to implement the women's preventive services provision, they were obligated to follow both the ACA and RFRA. The government obscures this by treating its exemption for churches and integrated auxiliaries as a matter of administrative grace. As Professor Laycock himself recognizes, though, and as Hobby Lobby holds, imposing the contraceptives mandate directly on religious objectors would violate the RFRA. 

Even if someone rejects the idea that the exemption for churches and integrated auxiliaries was required by RFRA, nobody can deny that the implementing agencies were at least required to follow RFRA's commands in formulating their regulatory regime. And it is this requirement for RFRA compliance in the regulatory process that provides a second principle for assessing the shape of any resulting exemption. When the government grants a specific religious exemption in its RFRA-governed rulemaking, it has to give a reason for the exemption that it provided. And this is crucial because, at the very least, the government's own reason for giving an exemption can provide courts a principle for assessing the line that the government has drawn between exempt and nonexempt entities.

The truth is that interest-group politics best explains the line drawn by the government. But interest-group appeasement is not an adequate rationale for the agencies to explain their action. So they said something else in the Federal Register, namely that exempt entities were more likely to employ co-religionists. That rationale, however, applies equally to petitioners, who enjoy the Title VII exemption to hire co-religionists, as Paul Clement argued in his rebuttal: "Their original justification for the line they drew, Justice Kennedy, was that the exempted organizations would be more likely to hire co-religionists and, therefore, less likely to have employees who would use the products. My clients equally enjoy the Title VII exemption which gives them the right to hire co-religionists so their original rationale applies equally to my clients. You have to draw a sensible line." 

Contrary to Professor Laycock, holding the government to its own rationale when it implements rules in accordance with RFRA by providing exemptions does not pose a mortal threat to specific religious exemptions. It protects against circumvention of RFRA itself.

Which brings me back to the opening question for this post: How avoid a 4-4 split? 

To state the obvious, a resolution in petitioners' favor would require at least one of the Hobby Lobby dissenters to join (at least as the outcome) with the four Justices that remain from the Hobby Lobby majority. Given how the government's case collapses once one recognizes the obvious mismatch between the scope of the regulatory exemption and the rationale given for it, the most likely candidates for voting in some way for petitioners are Justice Kagan and Justice Breyer. Their pre-judicial experience with legislation and rulemaking positions them to best appreciate how it has resulted that government lawyers have found themselves stuck defending as legally justified line-drawing that was politically motivated. And as judges, both Breyer and Kagan appreciate how judicial oversight of the administrative process can sniff out the effects of political influence that is insufficiently tethered to the even-handed advancement of actual government interests. 

Neither Justice Breyer nor Justice Kagan nor any of the other Justices needs to draw up once-and-for-all criteria for identifying inappropriately gerrymandered religious exemptions. The Justices need only hold the government to its expressed rationale in the administrative record for why it drew the lines that it did. 

When RFRA intersects with rulemaking, judges are not RFRA's front-line enforcers. They are, instead, a refuge for religious exercise that is protected by RFRA but that is subordinated to interest-group politics in the administrative process. One workable way to make RFRA operate as intended is for the judiciary to hold the government to its own rationale for the regulatory lines it has drawn.

Doug Laycock's Op-Ed on Zubik v. Burwell

Few if any academic lawyers have done more to protect religious liberty than Doug Laycock.  In his op-ed on Zubik v. Burwell, published in the Washington Post on March 20, Doug writes:  "I had never before filed a brief in support of the government in a case about the free exercise of religion."  If you haven't already read Doug's op-ed, here it is.

A Jewish Thinker Clarifies My Prayer This Holy Thursday

Tonight we Catholics enter the Holiest of Holy Days. We may be tempted, in light of all that's going on in politics (and at the Supreme Court, Kevin Walsh's post notwithstanding), to discouragement or even despair. The republic seems on the brink. And yet, there's this beautiful and enduring Truth: 

Pange lingua gloriosi
Corporis mysterium,
Sanguinisque pretiosi,
Quem in mundi pretium
Fructus ventris generosi,
Rex effudit gentium.

Christ reigns.

Taking a cue from Pope Francis, it may be fair to put some of the blame on us -- well-formed, well-educated Catholics-- that we are now at a point in our country's history when some are at risk of not being able to live according to this truth, without significant financial penalty. As Catholic entrepreneur and philanthropist Frank Hanna memorably remarked at last week's conference on Human Ecology at CUA's School of Business and Economics: "Our problem today is two words: Frank. Hanna." But that surely is a bit of it, right? Most of us don't give credible enough witness to the faith. Christ reigns, always offering to live through us, but all too often, we are lukewarm. Secularization is on the march, and has been for decades, but for all our good arguments (and they are good arguments!), have we been the neighbors we've needed to be, the other Christs we're called to be? 

Perhaps by now many MOJers have watched or read Yuval Levin's November 2015 First Things Lecture, published (online for subscribers) in the February issue of the journal, "The Perils of Religious Liberty." If not, do so. The entire thing is superb, as we've come to expect of Levin's work. But I wanted to focus attention on his call--similar to Rod Dreher's, I suppose, but just elemental to good Christianity (N.B.: Levin is Jewish)--to prioritize the shoring up of our families and communities to live our lives as credible witnesses. Levin well understands that our ability to do just this requires that we continue to take the political and legal fight to those who oppose religious liberty rightly understood and who oppose our way of life, but he asks that in doing so we not sell ourselves short. Admittedly, this is not my area of expertise, so I'm not as widely read as many who write (or perhaps read) on this blog, but this is perhaps the best piece I've read on religious liberty - ever. 

Here's Levin: 

This may be the greatest peril we face in championing religious liberty--the danger that our call for sustaining a space for living out our moral vision might be mistaken for an argument that the sustaining of space for ourselves is itself the essence of our moral vision....

 

This means we need to see that we are defending more than religious liberty: We are defending the very idea that our government exists to protect the space in which various institutions of civil society do the work that enables Americans to thrive, and we are defending the proposition that this work involves moral formation and not just liberation from constraint. That is an entire conception of the meaning of a free society that goes well beyond toleration and freedom of religion. It is ultimately about the proper shape and structure of American life. 

 

Making that clear--to ourselves and to others--will require an emphasis not just on the principles involved (be they religious liberty or subsidiarity or the freedom of association), but also on the actual lives of our actual, concrete communities. It will require that we turn more of our attention homeward, away from raging national controversies and toward the everyday lies of our living moral communities--toward family, school, and congregation; toward neighbors in need and friends in crisis. It will require us to see that we need to build more than protective walls; we need to build strong, thriving, attractive communities. 

 

The purpose of fighting to defend religious liberty is therefore not only defensive but also missionary: It is to allow the orthodox to meet their obligations, and to show the country a better way in practice. And that better way can only be embodied in real, living communities. 

 

Only such communities can model appealing alternatives to the lonely decadence of the popular culture's ideal of the life of a young American. Only such communities can create meaningful norms of responsibility and commitment that can help their neighbors see why family matters and what it can make possible. Only such communities can demonstrate how meaningful progress can be rooted in collective remembrance rather than just individual desire, ambition, preference, or choice. Only such communities can give rise to a new generation committed to living out the virtues, or seeking out the wisdom of our moral and intellectual traditions, or continuing the struggle for a free society and a more just world.

I pray that we all may enter more deeply into the mystery of our faith tonight, seeking the wisdom and the resolve to ask God, day by day, to transform our families, our communities, ourselves. Christ will always reign, regardless of what happens to this beloved country of ours, but friends, our country needs us...

Tantum ergo Sacramentum
Veneremur cernui:
Et antiquum documentum
Novo cedat ritui:
Praestet fides supplementum
Sensuum defectui.

Genitori, Genitoque
Laus et iubilatio,
Salus, honor, virtus quoque
Sit et benedictio:
Procedenti ab utroque
Compar sit laudatio.

A few takeaways from oral arguments in the Little Sisters of the Poor case

Most reports of yesterday's oral arguments in the Little Sisters of the Poor case suggest that the Court is likely to split 4-4. That may be, I suppose, but who knows? In any event, this suggestion of an split understates just how bad of a day it was for the federal government. If Justice Scalia were still on the Court, the stories would be describing the argument as a government rout.

Even with the Court composed as it is, the government's position coming out was substantially weakened from what it was going in. Post-argument, there is less reason to simply assume that the Hobby Lobby dissenters will not recognize the valid religious liberty claims of the nonexempt religious nonprofits appearing yesterday (in contrast with the religious liberty claims of for-profit corporations). Apart from the identity of the nonexempt entities, the big asserted difference between Hobby Lobby and the Little Sisters' case was supposed to be the government's "accommodation," which is just an alternative means of compliance for nonexempt religious nonprofits who can purportedly hand the obligation off to somebody else while washing their own hands of complicity. If nothing else, it became clear that a majority of the Court understood that the government's alternative means of compliance does not make contraceptive coverage under it independent of the nonexempt religious nonprofits. 

Here are a few takeaways that I left arguments with yesterday and that still seem right after having slept on them:

1. Every circuit court that ruled for the government in these cases held that the contraceptives mandate imposed no substantial burden under RFRA. A majority of the Court yesterday seemed unlikely to agree.
   
   
2. The government has characterized its accommodation for nonexempt religious nonprofits as a simple opt out coupled with an "independent" coverage obligation imposed on third parties. A majority of the Court yesterday seemed to reject this characterization.
   
   
3. The government has somehow succeeded up until this point in (A) insisting on contraceptive coverage for employees of nonexempt religious nonprofits that is "seamless" from the employees' point of view, while (B) simultaneously asserting that the resulting coverage is "independent" of the employer's choice. A majority of the Court yesterday seemed to appreciate that makes no sense.

If these observations are right, it's difficult to see how the government wins. 

RC Davis-Undiano discussing immigration law and policy with Michael Scaperlanda on Current Conversations.