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, August 3, 2011

Minimalist Exemptions and Religious Progressives

By Thomas Berg

Rick's posts about contraception coverage and the healthcare law point to the calls by, among others, Steve Schneck and Michael Sean Winters for a much broader exemption for "religious employers" than the exceedingly narrow one that the Obama HHS Department is proposing.  The proposed exemption, drawn from state laws mandating employer insurance coverage of contraception, only treats an organization as a "religious employer" eligible for accommodation if the organization, among other things, "has the inculcation of religious values as its purpose" and "primarily serves persons who share its religious tenets" (each prong must be satisfied--including two additional ones).  As Rick and others have pointed out (and I argued here), this reflects an indefensibly narrow vision of religion as an insular activity of preaching to members.  It leaves unprotected virtually all social services, certainly those that do not involve explicit preaching or attempts to convert.  (Ironic, since often opponents of religious social services complain that those entities mix in proselytization with the help they provide.)

I'm particularly interested in the attitude of religious liberals or progressives (Christian/Jew, Catholic/Protestant, etc.) toward such a minimalist approach to religious conscience.  As a political matter, they may well be the crucial group for preserving the religious liberty of traditionalist groups when it's under assault.  (I realize that the Catholic Church itself often confounds neat categories of "traditionalist" and "progressive," but many Catholics, as well as other religious believers, end up sorting into these outlooks.)  Traditionalists will often have insufficient votes themselves, and they  likely will get little sympathy from secular liberals who oppose both their moral position and the religious faith from which it ultimately stems.  But religious liberals, although they mostly disagree with traditionalists on contraception or (say) same-sex marriage, may at least--should at least--sympathize with the sense of devotion and call that leads traditionalists to their positions. 

And religious liberals should be deeply disturbed by the definition of "religious employer" that has been peddled in the contraception-funding context.  The definition conflicts with a common, even central, tenet of progressive Christianity: that the message of Jesus is not (or not only) about otherworldly salvation, but is about serving the needy with the love of Christ, often without explicitly preaching, proselytizing, or (in the words of the narrow exemption) "inculat[ing] religious values."  Similarly, liberal Christians frequently affirm the provision of service ecumenically to all persons, again without seeking to get them to "confess Christ" or join the church--in the exemption's words, "share its tenets"--in order to be recipients of Christian love.  If a prominent Christian fundamentalist said that a liberal social service was not Christian or religious because it didn't explicitly preach or try to convert people, religious liberals would fire back.  They should fire back about this exemption language too.  Even though the narrow exemption may coincide with the beliefs of many religious progressives on contraception, it rests on premises that utterly undermine religious mission as they understand it.

Tom 

UPDATE:  I should note that a variety of scholars from varying positions on the "progressive/traditional" spectrum have written in criticism of the narrowness of the exemption, including Susan Stabile, Rick, etc.  I was referring mostly to mainline/liberal religious denominations and activist groups who should criticize it as well. 

    

Joyner v. Forsyth County

By Michael Moreland

My friend and former colleague Kevin Walsh (Richmond) has an interesting post on Joyner v. Forsyth County, a recent Fourth Circuit case holding unconstitutional (because unduly sectarian) the practice of legislative prayer at the meetings of the Forsyth County (North Carolina) Board of Commissioners. As Kevin notes, the Fourth Circuit's opinion has an unusual disagreement between Judge J. Harvie Wilkinson and Judge Paul Niemeyer (son, by the way, of the great political theorist Gerhart Niemeyer). In addition to the usual Establishment Clause issues surrounding legislative prayer, the case poses a set of issues about religious pluralism and civil religion (as Kevin suggests, is the ghost of Thomas Jefferson haunting the Fourth Circuit?). Go read the opinion and Kevin's post, but here's the conclusion to Judge Wilkinson's opinion:

George Washington once observed that "[r]eligious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause." Letter from George Washington to Edward Newenham (June 22, 1792). As our nation becomes more diverse, so also will our faiths. To plant sectarian prayers at the heart of local government is a prescription for religious discord. In churches, homes, and private settings beyond number, citizens practice diverse faiths that lift and nurture both personal and civic life. But in their public pursuits, Americans respect the manifold beliefs of fellow citizens by abjuring sectarianism andembracing more inclusive themes. That the Board and religious leaders in Forsyth County hold steadfast to their faith is certainly no cause for condemnation. But where prayer in public fora is concerned, the deep beliefs of the speaker afford only more reason to respect the profound convictions of the listener. Free religious exercise posits broad religious tolerance. The policy here, as implemented, upsets the careful balance the First Amendment seeks to bring about.

And here's the conclusion to Judge Niemeyer's dissent:

I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.

The Ninth Circuit and Religious Discrimination by Religious Groups

By Steve Shiffrin

Yesterday the United States Court of Appeals for the Ninth Circuit upheld the non-discrimination policy of San Diego State University which denies official campus status to any group that “discriminates on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition except as explicitly exempted under federal law.” From my perspective, this policy is laudable on its face (though I recognize that many on this site would be troubled by the inclusion of sexual orientation among the forbidden grounds of discrimination). Groups with official status receive funding among other benefits and a state university need not subsidize discrimination.

The problem with yesterday’s decision in Alpha Delta Chi-Delta Chapter v. Reed is that the Court upheld the application of this policy to a religious organization that discriminated on the basis of religion. At the same time, San Diego permits secular groups to confine their membership to those who agree with their ideology such as the Republicans, the Democrats, and the  Socialists.  Even the Hispanic Business Students Association confines membership to those who support its goals and objectives. These groups are permitted to exclude those who do not support their ideology because their exclusions are not based on any of the forbidden grounds such as race or religion.

To be sure, it is ordinarily problematic for an organization to discriminate on the basis of religion. If the Sierra Club were to exclude Catholics or Jews or Muslims, it would be an outrage. But there is nothing outrageous about a religious organization confining its membership to those who agree with its ideology any more than it is problematic for the Young Democrats to do so.

In response to this, the Ninth Circuit argues that the liberty of the religious organization is not denied. It may still participate on campus without official recognition. But the problem is the inequality in application of the policy. In response to this point, the Circuit says that this inequality was not part of the purpose of the policy. Perhaps so, but that is beside the point. The effect of applying the policy in this way should have been regarded as constitutionally unreasonable.

Without question, this issue is on its way to the Supreme Court. Its fate there is uncertain. The closest case to it is CLS v. Martinez. There a divided Court upheld a policy of the Hastings Law School giving official status only to those student groups that were open to all students. In that context, the inequality I have been discussing did not exist. The Ninth Circuit recognized that its ruling was not dictated by Martinez.  I predict that the Ninth Circuit will be reversed 5-4, but I am not prepared to back this shaky prediction with a bet of any kind. Nonetheless, Roberts, C.J., Scalia, Thomas, and Alto, JJ., are certain to vote for reversal if the case gets there. No one in Martinez joined Stevens, J., concurring opinion in which he approved of using a non-discrimination policy involving religion against a religious group. Kennedy is a possible vote to join his usual bloc of voters and one of the liberals could join as well (though to say the least liberals are divided on this issue).

crossposted at religiousleftlaw.com 

 

New York Times magazine article on Down syndrome

By Richard Myers

Here is a link to my post on the University Faculty for Life blog about a touching article in the New York Times Sunday magazine of July 31, 2011. The magazine article tells the story of Dr. Alberto Costa and his daughter Tyche (who has Down syndrome). After the birth of his daughter, Dr. Costa has devoted his medical research to Down syndrome and he has been developing some promising treatments. The article also notes that the development of noninvasive tests to allow a pregnant woman to determine whether her unborn baby has Down syndrome may "cure" Down syndrome by eliminating children with Down syndrome.

Richard M.  

Tuesday, August 2, 2011

Italy to Follow France and Belgium?

By Marc DeGirolami

The report of the NY Times is here:

An Italian parliamentary commission on Tuesday approved a draft law banning women from wearing veils that cover their faces in public.

The draft passed by the constitutional affairs commission would prohibit women from wearing a burqa, naqib or any other garb that covers the face in such circumstances.

Third parties who force women to cover their faces in public would be fined euro 30,000 ($43,000) and face up to 12 months in jail, the news agency ANSA said.

More Public Debates about Philosophy, Please!

By Kevin P. Lee

Yesterday was a good day for philosophy. Shortly after I read Joe  Komonchak's post on Commonweal, which was reposted by Rick Garnett here on "Mirror of Justice" (and the interesting comments on both blogs), the NYT posted Stanley Fish's op-ed which also dealt with a reply to Paul Bohossian's July 24, op-ed on moral relativism. So much public discussion of philosophy in one day is unusual, but I think it is a promising development.

Continue reading

Polyphony

By Marc DeGirolami

I just finished Bernard Lewis's What Went Wrong?: Western Impact and Middle Eastern Response.  I enjoyed the book very much -- many interesting insights.  Among these was a lovely point that Lewis made about polyphony.  Lewis has an extended discussion of the comparative lack of influence which Western music has had on Middle Eastern culture -- compared, that is, to Western art or Western literature.  He then discusses the idea of polyphony as foundational not only to Western music, but to Western culture generally.  In music, of course, polyphony means more than one melodic voice at the same time, interweaving with the others.  Polyphonic music was at one time long ago officially banned from the Catholic liturgy, but men of genius like Palestrina were influential in rendering polyphony acceptable in, for example, magnificent settings of the Mass.  The rest is polyphonic history (as the Masses of Bach, Mozart, and Beethoven, inter alia, attest).  For me polyphonic music reaches its apotheosis not in the symphony (voices together) but in the concerto, where melodies are not only multiple, but clashing and rivalrous.  

Lewis makes the elegant point that the concept of polyphony plays a central role not only in music but in many Western cultural forms.  In literature, for example, in the form of novels and, more especially, plays.  In sports, particularly the team sports which flourished first in England and then blossomed spectacularly in the United States.  And -- and this is Lewis's real target -- in politics, where the ideal of polyphony is manifested in parliamentary political systems -- multiple competing voices which can seem at times cacophanous but in the end (God willing) produce the harmonies of the modern polity.

The advantage of monophony is that if there is a voice which it is especially important to hear, one maximizes the chances that it will be heard; polyphony makes this less likely and it is for this reason that religious leaders of the past, Muslim and Christian, were troubled by it.  Now of course few people give polyphony a second thought.  I recommend the book (which I listened to, in splendid monophonic solitude).

Monday, August 1, 2011

John Garvey on "Religious Liberty and Conscience Protection"

By Rick Garnett

Here, thanks to America, is my friend and former colleague, John Garvey, on the importance of religious liberty and conscience protection, with special reference to the new HHS regulations.  A bit:

. . . Americans differ over whether the services recommended by the Institute of Medicine are bad things. But the issue before HHS is not whether to allow sterilization, contraception, and abortion. It is whether to order insurance companies to cover these services, and employers and employees to pay for them, even if they view them as morally wrong. It is in just this situation that the respect for religious freedom comes into play. Most Americans view service in the armed forces, especially in times of trouble, as a good thing. Most are willing to sanction even the taking of enemy lives, if it is necessary to protect our country and those we love. Quakers do not, and from the beginning of our history we have treated their “conscientious scruples...with great delicacy and tenderness.” . . .  

A short history of philosophy

By Rick Garnett

Joe Komonchak, at Commonweal, passes on a funny short-history-of-philosophy (which is presented by Anthony Kenny for rejection):

There is a popular master-narrative of the history of philosophy that goes like this: philosophy was started in the ancient world by Plato and Aristotle, who were not bad philosophers considering how long ago they lived. Once the Western world became Christian, however, philosophy went into hibernation for many centuries, and saw as its only task to write footnotes to Aristotle. Some of the scholastic philosophers of the Middle Ages were clever chaps, but they wasted their talents on logical quibbles and pettifogging distinctions. It was only when Aristotle’s metaphysics was thrown over in the Renaissance that philosophy got into its stride again, and renewed its connection with scientific inquiry. Descartes showed that the way to understand the material universe was to treat it as a conglomeration of purposeless material objects operating according to blind laws: there was no need for Aristotle’s final causes. While Descartes was a rationalist, a succession of philosophers writing in English, from Hobbes to Hume, showed that it was sensory experience, not reason that was the basis of all our knowledge. Kant and his German Idealist followers introduced a degree of obfuscation into philosophy, from which Continental philosophy has never totally recovered. But in Britain and American in the twentieth century, philosophy re-emerged into the daylight with the logical empiricism of brilliant minds like A.J. Ayer.

Feser rightly rejects this entire story.

The new "conscience" regulations

By Rick Garnett

A few days ago, I posted a link to a column by Steve Schneck on the importance of conscience-protection regarding "medical procedures that must be covered by new insurance policies offered under the health care reform law."

According to the HHS website, "historic new guidelines" have been proposed "that will ensure women receive preventive health services at no additional cost."  Later in the press release, there's this:

The administration also released an amendment to the prevention regulation that allows religious institutions that offer insurance to their employees the choice of whether or not to cover contraception services. This regulation is modeled on the most common accommodation for churches available in the majority of the 28 states that already require insurance companies to cover contraception.  HHS welcomes comment on this policy.

Unfortunately, this model "most common accommodation" -- which you can find here -- is very, very narrow.  Consider this, for example: 

In the Departments’ view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate. Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions. 

As I see it, an exemption that proceeds on the basis of the assumption that all that is at stake is the "unique relationship" between a "house of worship" and "employees in ministerial positions" is going to exclude from its scope a lot that matters.  Now, consider the (very, very narrow) definition of a "religious employer":

Consistent with most States that have such exemptions, as described below, the amended regulations specify that, for purposes of this policy, a religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. 

As I see it, there are many "religious employers" whose "conscience"-type rights should be protected that do not have as their purpose the "inculcation of religious values"; that do not limit employment to co-religionists, and that do not serve only, or even primarily, persons who share their "religious tenets."  Basically, the new rules seem to federalize (for purposes of the "new" plans to which they apply) the California contraception-mandate that was litigated several years ago in the California Supreme Court.  As I wrote, in this short opinion piece at the time:

In a sense, the [California law's] “religious employer” exemption’s criteria reflect, and reinforce, a controversial, sectarian, privatized notion of what religion is, and what religious communities do: Religion is about belief and values, not service, sacrifice, and engagement. By requiring, as a condition of participation in public life, that Catholic Charities acquiesce to this notion, California is not only taking sides in an irreducibly religious debate about human sexuality. It also, in Justice Brown’s words, “impoverish[es] our political discourse and imperil[s] the foundations of liberal democracy.”

My understanding is that there is still time to comment on the proposed religious-employer exemption, and there remains the possibility of revision.  I hope such revisions are forthcoming.  In the meantime, I would urge Mr. Schneck and other Catholics who supported the nomination of Sec. Sebelius to push back, and focus her attention on the exemption's weaknesses.

UPDATE:  Michael Sean Winters, at NCR, makes the case here that the new exemption is "totally inadequate."  He concludes:

Sixty days [the time for comment] is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let's hope the administration will listen.

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