Wednesday, May 18, 2016
Unlike his predecessors, Pope Francis seems to relish the chance to speak with the press. No doubt he sees these "encounters" as opportunities to share the joy of the gospel with a wide audience. Shortly after his election as Peter's successor, he gave a lengthy interview with America Magazine (here), and his in-flight press conferences with journalists covering papal pastoral visits to countries around the globe have become common place (see, e.g., here, here, here, and here). Given Pope Francis' extemporaneous and pastoral style, it is not surprising that some of these interviews and press conferences have been a source of some confusion. Thus, when these interactions with the press actually clarify the Pope's views with respect to matters of concern to the faithful, they should be welcomed.
Yesterday the French newspaper La Croix published a recent interview it conducted with Pope Francis. (The English translation of the interview is available here). In the piece, as in prior interviews, the Pope addresses a wide variety of topics including European identity, the plight of refugees, and the status of the Priestly Fraternity of Pius X. Of perhaps special interest to MOJ readers were Pope comments on religious freedom.
La Croix: The significance of Islam in France today, like the nation’s Christian historical foundation, raises recurring questions concerning the place of religion in the public arena. How would you characterize a positive form of laicity (Editor: ‘laicity’ refers to the French system of separation of Church and state)?
Pope Francis: States must be secular. Confessional states end badly. That goes against the grain of History. I believe that a version of laicity accompanied by a solid law guaranteeing religious freedom offers a framework for going forward. We are all equal as sons (and daughters) of God and with our personal dignity. However, everyone must have the freedom to externalize his or her own faith. If a Muslim woman wishes to wear a veil, she must be able to do so. Similarly, if a Catholic wishes to wear a cross. People must be free to profess their faith at the heart of their own culture not merely at its margins.
The modest critique that I would address to France in this regard is that it exaggerates laicity. This arises from a way of considering religions as sub-cultures rather than as fully-fledged cultures in their own right. I fear that this approach, which is understandable as part of the heritage of the Enlightenment, continues to exist. France needs to take a step forward on this issue in order to accept that openness to transcendence is a right for everyone.
La Croix: In a secular setting, how should Catholics defend their concerns on societal issues such as euthanasia or same-sex marriage?
Pope Francis: It is up to Parliament to discuss, argue, explain, reason [these issues]. That is how a society grows.
However, once a law has been adopted, the state must also respect [people’s] consciences. The right to conscientious objection must be recognized within each legal structure because it is a human right. Including for a government official, who is a human person. The state must also take criticism into account. That would be a genuine form of laicity.
You cannot sweep aside the arguments of Catholics by simply telling them that they “speak like a priest.” No, they base themselves on the kind of Christian thinking that France has so remarkably developed.
So, "[s]tates must be secular" as "[c]onfessional states end badly," and "a version of laicity accompanied by a solid law guaranteeing religious freedom offers a framework for going forward." This proper understanding of laicity is not the exaggerated version of laicity regnant in French law and society. Rather a proper understanding of laicity must grant people the freedom to externalize their faith," to profess their faith at the heart of their own culture not merely at its margins."
What this proper understanding of laicity and religious freedom means specifically in the case of unjust laws such as those recognizing same-sex marriage and euthanasia is that "[t]he right to conscientious objection must be recognized within each legal structure because it is a human right. Including for a government official, who is a human person."
During his visit to the United States last September, Pope Francis met briefly at the nunciature with Kim Davis, the county clerk in Kentucky who refused to issue marriage licensed to same-sex couples in her name on grounds of religious conscience. At the time, some Catholic commentators, like Rev. James Martin, S.J. (here) warned against reading too much into the meeting. With fitting prudence, Father Martin cautioned that it is "ill advised to use a private visit with the pope to make political point" and that "the pope meets with many people" about whom the Pope may know next to nothing, such that any given papal visit "does not betoken a blanket blessing on 'everything' one does."
Comments that the Pope made during his return flight to Rome (here) clarified his support for the principle of religious conscientious objection even in the case of government officials.
I can’t have in mind all cases that can exist about conscience objection. But, yes, I can say the conscientious objection is a right that is a part of every human right. It is a right. And if a person does not allow others to be a conscientious objector, he denies a right. Conscientious objection must enter into every juridical structure because it is a right, a human right.
When asked specifically whether this would include government officials, Francis responded: "It is a human right and if a government official is a human person, he has that right. It is a human right."
His comments in La Croix confirm this. They do not settle the question definitively for American Catholics, at least to the specific contours of what religious accommodation for governmental officials should look like. But they make clear that the casual (and, one might add, often caustic) dismissal of religious objectors who hold positions in government is not in keeping with the Catholic tradition.
May 18, 2016 | Permalink
Here's my contribution to the symposium on the Court's recent (and somewhat cryptic) per curiam opinion in the Little Sisters of the Poor case. A bit:
. . . Regardless of what happens in the ongoing contraception-coverage saga, though, there are more than a few troubling signs that this policy of accommodation and the commitments it reflects are falling out of favor and even being squarely rejected. More and more, the enterprise of accommodation of religion, which is so crucial to the creation and maintenance of civic friendship in a diverse political community, is linked in the public mind and in political arguments with reactionary and even “bigoted” resistance to or reservations about the ongoing and dramatic shifts in attitudes and laws regarding sexuality, family, marriage, and identity. Increasingly, commentators’ emphasis seems to be shifting from the invaluable work that religious civil-society institutions do to the ways in which their norms and practices differ from those of the liberal state. There is decreasing appreciation among scholars and officials for religious organizations’ freedom-enhancing role and the good of pluralism and increasing worry that these organizations’ distinctiveness might, in some cases, complicate the state’s ambitions or undermine its goals. In some quarters, there is more fear that the accommodation of religion will somehow endorse or involve an insult to a third party’s sense of dignity than there is that state action will violate the right to religious freedom that human dignity demands.
To quote the symposium contribution of my friends and colleagues Nelson Tebbe, Micah Schwartzman, and Richard Schragger, it is a “demand of justice” that political authorities in diverse and sometimes disagreeing communities avoid, to the extent their obligations to promote and protect the common good allow it, burdening religious exercise or violating religious conscience. We should hope that, going forward, this demand will be heard and heeded. There is no denying, though, that to the extent the right to religious freedom is regarded as a luxury good, a license to do wrong, or as special pleading by the culture war’s losers, it is increasingly vulnerable. This should concern us all, because believers and nonbelievers alike benefit from a legal and cultural commitment to religious freedom and have a stake in the legal regime that respects and protects it.
Monday, May 16, 2016
Here's the Call for Papers for the always-enjoyable-and-inspiring annual Fall Conference of the Notre Dame Center for Ethics & Culture:
Each year on the campus of Notre Dame, the Center hosts its interdisciplinary Fall Conference, the most important venue for truly fruitful dialogue and exchange among the world's leading Catholic thinkers, as well as those from other traditions, on pressing and vexed questions of ethics, culture, and public policy. The Conference attracts five hundred to six hundred participants annually and features more than one hundred paper presentations in disciplines ranging from philosophy, theology, political theory, and law to history, economics, science, and the arts.
Our 17th annual Fall Conference, "You are Beauty: Exploring the Catholic Imagination," will consider “aesthetic contemplation sublimated in faith” (“Letter to Artists,” Pope St. John Paul II), exploring the relationship between the imagination, beauty, truth, and religion in a variety of contexts, particularly the arts, music, architecture, literature, philosophy, theology, political theory, and the sciences.
To submit a paper for the Fall Conference, please email a one-page abstract and a CV to [email protected] by July 1, 2016. Notification of acceptance will be made by August 15, 2016. The conference will take place November 10 - 12, 2016 at the University of Notre Dame.
Today the Supreme Court issued a short per curiam opinion vacating the circuit courts' respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the "substantial clarification and refinement" in the claimants' and the government's respective positions that the Court claims was generated by the supplemental briefing. To wit:
Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company....The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
Disagreements as to implementation to be worked out below. No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court's order essentially to make crystal clear to the government that she was sympathetic to its views.
"President Scaperlanda" has a nice ring to it, I think. And, here's the great news from St. Gregory's University that our own Michael Scaperlanda has been named the University's 16th President. Here's a bit from the press release:
. . . University of Oklahoma’s President David L. Boren praised the selection, noting that Scaperlanda is an excellent choice to lead St. Gregory’s.
“Scaperlanda’s vast leadership experience coupled with his passion for St. Gregory’s mission, commitment to excellence, tireless work ethic and effective communication skills bode well for St. Gregory’s future,” Boren said.
Reacting to the appointment, Oklahoma City Archbishop Paul Coakley said, “Michael Scaperlanda is a great choice to lead St. Gregory’s University at this time. Under his leadership I am confident that the University will thrive providing students with the intellectual, moral and spiritual formation crucial to living joy-filled lives oriented toward the common good.” . . .
Saturday, May 14, 2016
What the Future Holds: Why the Little Sisters of the Poor Case Was Necessary and Why Victory Is of Such Vital Importance
For those who had any misgivings about the Zubek case currently before the Supreme Court, this story leaves no doubt as to why the Little Sisters of the Poor litigation was necessary and why victory in that lawsuit is so important. (The Roman Catholic Diocese of Albany's press release on the lawsuit appears here).
The "model language" of one mandate from the New York Department of Financial Services requires insurers of individual and small group health plans to provide coverage for "therapeutic" and "non-therapeutic" abortions. The plaintiffs allege that a second, previously undisclosed mandate also requires coverage for abortion "under the rubric of 'medically necessary' surgery."
The actions of New York's DFS are an example of the direction that these matters will take in the future: mandated insurance coverage for surgical abortion by Catholic and other religious employers who object to providing any support for or participation in the procedure. At some point in the near future will come the mandate that the procedure actually be performed in Catholic hospitals and other institutions that object. These mandates will be created through unelected administrative bureaucracies since they would not survive public scrutiny through the democratic process. Thus, the losers in all of this are not only religious institutions and people of conscience, but all those who value democratic government, not to mention the unborn.
May 14, 2016 | Permalink
Friday, May 13, 2016
If conditions attached to Spending Clause legislation must be unambiguous, how can an agency's new interpretation of a concededly ambiguous regulation ground threatened loss of funds?
Surely someone out there knows the answer to this question that's been bugging me since the Fourth Circuit's decision in its Title IX transgender access to sex-segregated bathroom case, G.G. v. Gloucester County School Board.
Here's a Twitter version of my bleg from April 20: "Q for admin-law mavens: How square Auer deference re: Title IX bathrooms w/ Spending Cl requirement that conditions on funds be unambiguous?"
In something closer to plain English:
Congress does not have the power to tell local school districts how to provide access to their boys' and girls' bathrooms and locker rooms. But Congress can get this power by imposing conditions on the use of federal funds provided under the Spending Clause. Congress used its Spending Clause authority to pass Title IX, which prohibits sex discrimination by entities that receive Title IX federal funds. As part of the Title IX program, the federal government promulgated a regulation that explicitly allows Title IX fund recipients to have separate bathrooms for boys and girls as long as the facilities provided one sex are comparable to those provided by the other. This regulation does not speak to the question of how to provide access to sex-segregated bathrooms for schoolchildren whose gender identity does not correspond to their biological sex. But in a new guidance document, the Department of Education and the Department of Justice have said that Title IX fund recipients must provide access to sex-segregated bathrooms consistent with each student's gender identity, regardless of whether that gender identity is consistent with a student's biological sex.
Suppose a school that receives Title IX funds does not follow this guidance document. Can the federal government withdraw the school's Title IX funding?
One possible answer is "yes." The federal government can impose conditions on funds, and if fund recipients don't want to comply with those conditions, they lose the funds.
But another possible answer is "no." The federal government can't impose whatever conditions it wants on fund recipients. To be valid, a condition must be unambiguous. And the requirement to allow every student access to sex-segregated bathrooms based on the student's gender identity, regardless of what that gender identity is consistent with the student's biological sex, is not unambiguous. Violating that condition therefore cannot be the basis for withdrawing federal funds.
What does the law say about these two answers? Any pointers are welcome.
Here is a book chapter of mine, which is part of a forthcoming volume edited by Thomas Farr, Jack Friedman, and Timothy Shah, Religious Freedom and Gay Rights: Emerging Conflicts in North America and Europe (Oxford 2016):
This chapter is a contribution to a volume addressing the tension between claims of equal rights and claims of religious freedom. More specifically, the volume treats the potential for, and the reality of, conflict between the enterprise of promoting equality through anti-discrimination laws and that of vindicating religious freedom by limiting the reach of such laws.
In the United States and in many other countries and communities, this tension is real. It is also unavoidable and ineradicable because of here-to-stay and non-trivial disagreements among people of good will about the foundations and implications of human equality, dignity, and freedom, and also about the appropriate aims and reach of governments’ power. True, it is sometimes declared that, in fact, there is no conflict between religious liberty and non-discrimination law. It is said that claims that there is such conflict — claims that there is conflict presume or present a “false choice.” However, such declarations usually involve an attempt to dissolve the conflict by assuming and imposing a contested definition of or boundary on “real” religious liberty. Certainly, if “religious liberty” does not and cannot include a right, in some cases, to discriminate then there is very little chance of for conflict between religious liberty and anti-discrimination laws. However, religious liberty does sometimes include a right to discriminate in ways that would otherwise violate such laws. The tension between religious liberty and (other) civil rights — between religious liberty and the aspirations of equality legislation and anti-discrimination laws — is, sometimes, real, but this fact is unremarkable and should be unsurprising. After all, the right to religious freedom is not the only civil right the exercise of which sometimes bumps up against the exercise of others.
It is suggested in this chapter that this tension might be lessened, or at least better managed, if citizens and lawmakers thought more carefully about when and why “discrimination” is wrong and about the moral and constitutional limits on governments’ efforts to prevent and remedy, in the name of equality, wrongful discrimination. It will also be proposed that what some have called “healthy secularity” provides a way of thinking about these matters that is attractive, promising, and appropriately appreciative of pluralism.
Like the man says, download it while it's hot.
Thursday, May 12, 2016
Like Paul Horwitz, at Prawfsblawg, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism." Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way. (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts. We agree, though, that Casey was "wrong the day it was decided"!)
That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:
. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .
Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:
Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).
He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.
I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory. His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement. In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):
. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .
As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents. In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .
. . . Which reminds me: I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives. But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .