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.

Tuesday, June 28, 2016

"This case is an ominous sign"

Here is Justice Alito's opinion, dissenting from the Court's denial of cert in the Storman's case.   It's a sobering read, especially for those who are tempted to think that it's "culture warrioring" to be worried about, and to attempt to resist, the contemporary challenges and threats to religious freedom.

June 28, 2016 in Garnett, Rick | Permalink

Thursday, June 23, 2016


Kevin's characteristically good-natured response to the abstract of my paper, "A Catholic Way to Cook a Hamburger? The Catholic Case Against McLaw," not yet to the paper itself, in which I argue that there is a Catholic way to do law, evoked memories of a wonderful trip I took long, long ago.  

The trip was memorable for many reasons, but the relevant one concerns toilets. A good friend and I took an overnight train from Budapest (where he was living) to Brasov, Romania, in  Transylvania, for several days of backpacking and camping.  The train ride, on that hot summer night, was long, especially so because the air-conditioning wasn't working in our car on the train and the windows in our cabin were stuck shut.  We were traveling "First Class," but in immediately post-Communist countries and the decimated infrastructure bad government had produced.  More to the point, the toilets on the train were not working.  I don't know why, but they weren't.  Naturally, this made things dicy for all concerned, and there were many concerned on that long train on that long trip on that long night.  I'll never forget it.  By the time we reached Brasov soon after dawn, my friend and I were each desperate to use the restroom.  Our first hope, to use the facilities at the Brasov train depot, was dashed by our not having the Romanian coins that would allow entry.  The adjacent fields were a possibility, we feared, but we started the walk from the depot to downtown Brasov hoping that there would be a more dignified alternative.  Shops and the like were not yet open.  Not ten minutes later, we saw a billboard for a McDonald's that was advertised to lie a kilometer or so ahead, at the heart of historic Brasov.  We were elated at the prospect of relief that would not occur in the wild.  Sure enough, McDonald's was open earlier than every other commercial establishment, the bathroom facilities at that McDonald's were *remarkably* similar to those of every other McDonald's I've visited.  We were grateful, indeed, not to be disappointed by what McDonald's had promised and then, in fact, allowed.  My friend said at the time, and I recall it distinctly, that this was part of the genius of McDonald's, its uniformity and, therefore, reliability.  

Kevin's desire for uniformity in the workings and products of federal courts, even, as I see it, at the price to be paid, inevitably, by doing things in a way that contradicts the way human intelligence is intransigently structured to deliver, if it is to deliver, progressive and cumulative instantiations of the good, doesn't cause me to doubt the good that the reliably working restroom at the McDonald's in Brasov delivered in the relevant respect.  On the other hand, (1) the McDonald's in Brasov, just as all others, did not serve food in the focal sense of the term "food"; (2) that McDonald's was a blight on the organic integration of the city; and (3) doing actual justice in law is not at all like the successful flushing of a toilet, even in a federal court.     

June 23, 2016 in Brennan, Patrick | Permalink

The California Abortion-Mandate Case

California (by order of an administrative agency, not the legislature) has required all insurance companies in the state to include abortion in all health-insurance plans. In particular, it ordered seven commercial insurers (Blue Cross of CA, etc.) to add abortion coverage to their policies that did not already have it. The mandate covers what everyone agrees are abortions; the dispute over whether drugs like Ella or Plan B cause abortions of new embryos is irrelevant here.

There are questions whether the order violated the state administrative procedure act (the agency did not go through notice and comment). But on the substantive questions whether this violates conscience protections, two things happened this week: (1) The US Department of Health and Human Services (HHS) rejected a complaint that that the California order violates the federal Hyde-Weldon Amendment, which prohibits any recipient of federal funds (including a state) from discriminating against a "health care entity," including a "health insurance plan," on the ground that it does not cover abortion. (2) In a federal lawsuit against the state, the district court denied the state's motion to dismiss claims brought by religious organizations alleging that the mandate violates their state and federal constitutional rights of religious freedom. The denial of the motion, of course, simply means that the challenge survives on the pleadings and enters the discovery phase.

Here are some initial thoughts on the case. The California mandate could have a serious effect on the conscience of those opposed to abortion. But there are some complexities in the case that require exploring.

It appears that California has allowed at least one exemption for a plan offered to religious employers. More about that issue in a minute. But first, the main ground for HHS's decision to reject the Hyde-Weldon complaint--a ground that seems incorrect to me.

A. "Plan" versus "Employer"?

In its letter rejecting the Hyde-Weldon complaint and closing its investigation, HHS  says that the "health insurance plan" protected by Hyde-Weldon includes only the insurer who issues the plan, not the employer who maintains it and pays for it. Because the insurers in California did not object to adding abortion coverage, HHS says, Hyde-Weldon is not violated. That reading makes Hyde-Weldon silly and keeps it from accomplishing its goal of protecting conscience on abortion. HHS's position creates a simple end-around by which California and other states can impose on the conscience of thousands of employers simply by ordering that no abortion-excluding plans be available. It is more natural, and more consistent with the Amendment's purpose, to read "health insurance plan" to cover the employer's plan. (For similar reasons, objecting employers should have legal standing to challenge the California mandate; it clearly causes them concrete harm by making plans without abortion coverage unavailable.)
(HHS and the state say that the employer can avoid the imposition on conscience by self-insuring: but that is difficult and complex for many small employers. Just how difficult will probably be an issue emerging in discovery in the litigation. But although self-funding is increasing among small businesses, it still involves taking on risks that many such employers (including, presumably, smaller religious organizations) cannot handle--and reportedly several states, including California, are considering restricting small businesses' capacity to self-insure.)
But even on the premise that Hyde-Weldon only applies to insurers, HHS's reasoning seems wrong. The HHS letter says that Hyde-Weldon protects only those entities that object to abortion coverage, and these insurers didn't object to adding it. But Hyde-Weldon doesn't require a conscientious objection in order to apply: by its terms, it prohibits a federally-funded state from "subject[ing] any individual or institutional health care entity to discrimination on the basis that the health care entity does not provide for, pay for, provide coverage of, or refer for abortions" (emphases added). The trigger for protection is simply that the plan doesn't cover abortion, not that the insurer objects to covering it. Hyde-Weldon seems literally to prohibit California's order to insurers. Following the plain meaning would also protect the moral objections of employers and employees.
B. A Religious-Employer Exemption that Apparently Has Been Granted


The HHS letter (p. 2) says that Blue Cross of CA received authorization from the state to offer a plan to religious employers that excluded elective abortion. But that does not dispose of the case, for at least three reasons:

First, it sounds like the approval may have been a one-off--its availability not made clear to anyone else. 
Second, according to the federal court complaint (paras. 66-67), California authorized a religious-employer plan,  but it covered abortions for rape and incest as well as the mother's life. The plaintiff church, Skyline Wesleyan, objects to paying for abortions in those first two categories.
     The district court opinion (at p. 8) notes this partial exemption, saying: "Plaintiff alleges that Defendants have granted partial exemptions to the coverage requirement to religious employers that request such exemptions but that Defendants have been unwilling to grant any employer the complete exemption that Plaintiff seeks." And the court adds that "In light of Defendants’ system for granting exemptions, the parties may wish to investigate whether they can come to an arrangement that will meet the needs of all stakeholders." Id. n.2 (citing Zubik v. Burwell). Given these facts, California arguably has a practice of "individualized exemptions" that triggers strict Free Exercise Clause scrutiny even under Employment Division v. Smith. (The complaint also mentions some categorical secular exemptions in the underlying state statute, which likewise might be enough to trigger strict scrutiny.) The existence of these exemptions  may also undercut an asserted compelling interest in mandating that every plan cover abortion. (The compelling interest test cannot apply by virtue of a state RFRA, since California does not have one; and the level of scrutiny under California's free exercise clause is uncertain.)


Third and finally, abortion is a serious enough matter for the objector's conscience--the taking of a distinct human life--that even for-profit businesses (at the very least, some) ought to be protected from being forced to cover it. As the Supreme Court said in Burwell v. Hobby Lobby, if the government mandated employers to cover unquestioned abortions (and here, again, there is no dispute they are abortions), "[t]he owners of many closely held corporations could not in good conscience provide such coverage, and thus [the government] would effectively exclude these people from full participation in the economic life of the Nation." (Again, the self-insurance option can be difficult for smaller businesses.)

June 23, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, June 22, 2016

Trump and the Idolatry of Safety

Yesterday Christian leaders gathered in New York at Donald Trump's behest. Aside from bizarre elements (e.g., Trump wondering whether he could bring us back to the day when attending Sunday School was "automatic"), the attraction of many Christian leaders and laity to Trump based on their understandable longing for safety in a dangerous world, particularly when the price of that safety is the abandonment of certain Christian values and principles, stands as a stark reminder that golden calves come in many forms. 

Shortly after the Orlando massacre, I noted that Trump retweeted someone's undoubtedly heartfelt message imploring the candidate to "please make us safe."  This simple retweet, to me, captures one (of many) disturbing element(s) of Trump's candidacy.  He is inhabiting the biblical role of Aaron, playing on the people's fears and anxieties and offering a golden calf for their worship -- in this case, the idol is our own safety.

Though the dangers take new forms, we have lived in a dangerous world since the Fall.  Political candidates can and should offer new ideas to address those dangers, but unrealistic promises that safety is achievable should be met with skepticism.  A candidate's promise of safety rises to the idolatrous level, in my view, when the prescribed means of guaranteeing safety require us to reject the God-inspired lens through which we are called to view the world.  Trump's statements and policy proposals regarding Muslims and Mexican immigrants, for example, are in significant tension with the Gospel's demand for solidarity and recognition of human dignity. 

I do not mean to suggest that debates about stricter immigration policies or the consideration of religion's role in terrorism are categorically beyond the pale.  The more obvious problem comes from stigmatizing groups -- as Trump frequently does -- instead of engaging ideas -- as Trump appears to avoid whenever possible.

On this front, John Inazu's important book, "Confident Pluralism," is instructive, especially chapter six.  Building on insights from Erving Goffman and Lee Bollinger, John explains why confident pluralism "rejects stigmatizing others through our speech," but does require us "to distinguish between stigmatizing and causing offense."

Trump suggests that safety is achievable if we reject "political correctness" and demonstrate the courage to do what needs to be done to root out the dangerous "others" in our midst.  It is an illusory promise of safety through a quite real imposition of stigma, and we should reject both the means and the ends.  God calls us to faithfulness, not to safety.

June 22, 2016 in Vischer, Rob | Permalink

A response to Michael P. and "Religious Liberty in the Culture Wars"

Michael Perry linked here to John Gehring's recent post at Commonweal, "False Choices & Religious Liberty."   Michael says the piece is "terrific" and "balanced."  I'm afraid I cannot agree, notwithstanding my appreciation for Mr. Gehring's past work with the USCCB.

Now, I tend to prefer center-right policies on most issues, and Mr. Gehring works for a progressive public-policy agency, and so it's not remarkable that he and I evaluate differently some of the current policy debates in which the right to religious-freedom is implicated.  (Certainly, we both agree that there is a place for -- as his agency's title puts it -- "Faith in Public Life.")  Still, my disappointment with the piece is not, I think, a result of this difference.  In my view, the piece to which Michael linked does not accurately describe -- indeed, it tendentiously describes -- those debates.  As I see it, Mr. Gehring labels certain very real choices as "false" as a kind of short-hand way of contending that one choice rather than another should be made.

For starters, after saying that the debate over religious liberty is "unhinged" -- though his criticism is clearly directed only at the USCCB's "side" of that debate -- he writes:

At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

It's hard to see this sentence as an invitation to dialogue, balance, or re-hinging.  This sentence simply repeats activists' talking points -- it is, in fact, not the case that, generally speaking (there are always exceptions), religious liberty has been "perver[ted]" into a "bludgeon" for any such purpose.  It is, instead, being employed, defensively, against activists and powerful interests who are invoking "women's health, workers' rights, and LGBT equality" in order to marginalize, and often demonize, traditional religious believers and to interfere with the religious missions of religious institutions.  It is all well and good to bemoan the "culture wars" -- I regret them, too, and wish they would cease -- but, despite what some commentators say, the fact is that these "wars" are being waged more by Apple and Planned Parenthood than by the USCCB.

Next, Mr. Gehring's piece's claim that the "choice" between a meaningful right to religious freedom and equality, health care, etc., relies heavily on an implicit assumption that religious institutions -- like Catholic schools and hospitals -- are simply wrong in their religious commitments.  So, he lists among the perversions of religious freedom those schools that have fired teachers who have entered into legal same-sex marriages, but doesn't seem to acknowledge these schools' argument that, as Catholic schools, they have as part of their mission forming students in the Church's moral anthropology and understanding of marriage and that -- no doubt with great regret -- they don't have many options in these situations.

Then, Mr. Gehring pivots and observes that "progressives also need a better approach that fosters dialogue and common ground instead of division."  And, indeed they do.  I've been a part of a number of legislative and other efforts -- in partnership with scholars who identify as progressives -- to find such common ground, but I'm afraid it's been very challenging.  The reality is that even reasonable accommodations, let alone genuine appreciation for what my friend John Inazu calls "confident pluralism," doesn't hold much appeal for progressive activists and politicians at the moment.  For many, it's easier, it seems, to call people "bigots" or to insist that religious-freedom must yield to the demands of the current understanding of the antidiscrimination norm.  (More on this point, from me, in this paper.)

Unfortunately, it is quickly back to unhelpful and incomplete accounts of the issues at stake.  Particularly unfortunate is his embrace of the partisan and inaccurate descriptions of the various state-level RFRA proposals that have become so controversial.  He repeats the false claim that these laws would allow public-accommodations discrimination against gays and lesbians and so are like odious Jim Crow laws.  (For a more accurate account of the Indiana proposal, in particular, see this . . . by me.)   He concludes with this:

It’s wrong to pit religion against equality for all Americans. False choices box us into suffocating corners. Saving religious liberty from the quicksand of reckless rhetoric and political posturing won’t be easy. Progressives and conservatives squaring off in public debates have a choice. We can continue to exchange dueling press releases and self-righteous tweets—or sit down, humble ourselves, and search for common ground. “Come now, let us reason together, says the Lord,” the prophet Isaiah tells us. The comfortable and convenient path is well worn. Taking a harder road is worth the struggle if it leads to principled conversations and respect for the complexity of conscience.

There are some good ideas here but, again:  The fact is that religious-freedom claimants are seeking accommodation, not a complete win.  Respecting the "complexity of conscience" doesn't mean fining bakers and photographers, or pulling religious colleges' accreditation, or denying federal funds and contracts to religious social-service agencies that adhere to orthodox Christian teachings on sexuality and family, or requiring Catholic hospitals to provide abortions, or mandating that religious universities change their student-life and housing policies to match the current Administration's views on gender.  Lord knows I'm sick of smug, snarky, and self-righteous tweets.  But, to "humble" oneself means to not dismiss efforts to resist religious-freedom-burdening mandates and penalties as "perversions" and "bludgeons."

For my own part, I'm entirely open to working and talking with Mr. Gehring, or anyone else, about the "search for common ground."  But the search won't get far if one characterizes one's interlocutors' positions and aims in the language of "dueling press releases."

June 22, 2016 in Garnett, Rick | Permalink

Tuesday, June 21, 2016

Religious Liberty in the Culture Wars

Commonweal has just published a terrific article titled False Choices & Religious Liberty:  Is There a Better Way Forward?  Terrific in part because balanced.  It begins with this:

The U.S. Conference of Catholic Bishops launches its annual Fortnight for Freedom campaign this week. A recent video from the conference illustrates how unhinged the debates over religious liberty have become. Pairing images of Islamic State militants ready to behead Christian prisoners with ominous warnings of the Obama administration’s harassment of religious ministries epitomizes how the hierarchy risks making itself its own worst enemy on the issue. (For more, see the recent Commonweal editorial, “Lights, Camera, Contraception?”) Even many faithful Catholics who should be most sympathetic to the church’s arguments have grown weary of the divisiveness and worry that the all-consuming quality of the religious-liberty battle now seems to define American Catholicism. At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

Read the rest, here.

June 21, 2016 in Perry, Michael | Permalink

Is there a Catholic way of making hamburgers ... at your local McDonald's?

I look forward with some trepidation but with greater hope to reading Patrick's Catholic case against McLaw. Truth can be uncomfortable, but I must seek it out, like it or not. And because I happen to agree with much of what Justice Scalia has said about the law and judging, I am sure to be challenged by Patrick's paper. 

One thought prompted by reading the abstract: Is there some version of Justice Scalia's comparison of hamburger making and judging that might be true when we focus on who is making which hamburgers and why? Suppose federal courts were like your local McDonald's. Would there be a Catholic way of judging analogous to a Catholic way of cooking hamburgers? 

Hopefully this comes as a surprise to nobody, but the hamburger maker at your local McDonald's doesn't exist. That's because no hamburgers are made there. The chef cooks/heats up frozen hamburger patties processed at a hamburger plant. Is there a Catholic way of doing that? I doubt it, at least in any way that matters to how the hamburger tastes. 

And if not, then maybe there is no Catholic way of deciding questions of federal law, at least insofar as judges themselves don't make lawburgers, but just prepare and serve up what was made at the national law plant.

I realize this is an implausible way, for many, of understanding the relationship between the judicial power and federal law. But I do know of at least one Supreme Court Justice who avowed a claim of this sort. Here's Chief Justice John Marshall in Osborn v. Bank of the United States:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law. 

To push our comparison (perhaps past the breaking point). Suppose the judge is the hamburger "maker" at your local McDonald's. His skill is never to be exercised for the purpose of making the best hamburger as he conceives it, but for the purpose of making the best hamburger as the McDonald's corporation (or whatever the controlling entity that decides the ideal hamburger) conceives it. Something may be lost by the subordination of his idea of the best hamburger to the corporation's. But if he's doing his job and the hamburger plant has done its job, then that hamburger should taste the same in San Francisco as in South Bend (assuming that's one of the qualities of the McDonald's hamburger dictated by corporate).

It might not be the best burger in town, but you know what you are getting. And that's not so unattractive, after all, when it comes to federal courts, at least if you subscribe to the idea "The Federal Courts as a Franchise."

June 21, 2016 | Permalink

Monday, June 20, 2016


Here , below, is the abstract of a paper  I recently posted on SSRN: "A Catholic Way to Cook a Hamburger: The Catholic Case Against McLaw."   It owes much to my fellow contributors to MOJ over these many years, but none of them is responsible for its content, of course.  It also owes a great deal to the late Justice Antonin Scalia, whom I would like to thank across the chasm for all that he did to make us think harder about law, especially by inviting respectful disagreement.  


Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.

This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, celebrates, in turn, the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture, at Villanova. Its carefully circumscribed account of and argument for a Catholic way to do law is developed through conversation with some of the dozens of jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference; they include Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.

To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify." But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."


June 20, 2016 in Brennan, Patrick | Permalink

Saturday, June 18, 2016

First Anniversary of Laudato Si'

Laudato Si' was published on June 18, 2015.  For a wonderfully informative account of what has followed, in the past year, read this account.  An excerpt:

For those long engaged in environmental issues, the encyclical proved a valuable rallying tool, one that opened doors, spurred mobilization and generated not-seen-before excitement within Catholic circles.

"I cannot wish for anything better," said Cardinal Peter Turkson, president of the Pontifical Council for Peace and Justice, which oversaw the first draft of the encyclical. Since its publication last June 18, Turkson has served as its chief promoter, traveling across the globe to deliver countless talks on Laudato Si'.

"I think it has proven to be really transformative," said Tomás Insua, co-founder of the Global Catholic Climate Movement. "But there's definitely a long way to go to really get this encyclical to really sync in our Catholic identity and really drive transformational change." ...

As far as the long-term impact, Turkson placed Laudato Si' into the larger compendium of social encyclicals, describing them together "like a big river," with new tributaries forming as it flows forward. Like past encyclicals, such as Rerum Novarum, it too will stimulate future teachings and ideas, he said.

"But it is forever going to inspire the church's teaching on ecology and integral ecology."

June 18, 2016 in Perry, Michael | Permalink

Percy on "estrangement" and transcendence

"The Coming Crisis in Psychiatry" (1957):

What has gone wrong?  A clue is perhaps to be found in Fromm's ambiguous treatment of transcendence.  If there is any one feature which all existentialists agree upon as an inveterate trait of human existence, it is transcendence.  . . .  In Friedrich Nietzsche's words, man is he who must transcend himself. . . . [E]ven the atheistic existentialists would be candid enough to admit man's incurable God-directedness[.]

God is absent, said Johann Christian Holderlin; God is dead, said Nietzsche.  This means one of two things.  Either we have outgrown monotheism, and good riddance; or modern man is estranged from being, from his own being, from the being of other creatures in the world, from transcendent being.  he has lost something--what, he does not know; he knows only that he is sick unto death with the loss of it.

June 18, 2016 in Garnett, Rick | Permalink