Wednesday, February 22, 2012
Well, not explicitly. But, it sure fits (from Ch. 14):
“The judge placed his hands on the ground. He looked at his inquisitor. This is my claim, he said. And yet everywhere upon it are pockets of autonomous life. Autonomous. In order for it to be mine nothing must be permitted to occur upon it save by my dispensation.”
Doesn't that last sentence capture pretty well the attitude of a certain kind of illiberal, monist liberalism?
In a challenge to Washington State's requirement that pharmacists dispense Plan B even where a pharmacist has a religious objection to doing so, the federal district judge ruled today that the pharmacy regulations were neither neutral nor generally applicable and could not survive strict scrutiny review. Judge Ronald Leighton's opinion is here, and the Becket Fund's press release is here
"Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?" That is the question Professor Richard Pildes asks over at Balkinization. The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year -- a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision. In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.
I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as "authority" for a constitutional decision, at least unless the modifier "persuasive" is added. But even "persuasive authority" is not quite right. The body of Judge Calabresi's concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the "authority" for his opinion. In his post, Prof. Pildes describes the use of the epigraph as providing "normative support" for Judge Calabresi's views, and this seems closer, though also not exactly right.
I have always thought that epigraphs are not argument. They are not even suggestions of argument. Their function is to orient the reader obliquely toward a certain mood or manner of thinking. In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority. "Authority" is hardly the point.
All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.
Yesterday I wondered whether we were going to start seeing the "Sharia" label attached to any request by a religious believer for conscience-based exemptions from generally applicable laws. Apparently that train has already left the station. Consider this statement:
"Religious rules should end ‘at the door of the temple’ and give way to the ‘public law’ laid down by Parliament.”
“To me, there’s nothing different in principle with a Catholic adoption agency, or indeed Methodist adoption agency, saying the rules in our community are different and therefore the law shouldn’t apply to us. Why not then say sharia can be applied to different parts of the country? It doesn’t work,” he added.
And who's the "he?" Must be some guy sitting in his basement writing a blog post for an audience of three, right?. He couldn't be the chairman of the British Equality and Human Rights Commission, could he?
At Public Discourse, Robert Miller makes well a point I've been trying to figure out how to make, and does so better than I would have. (So, check it out.) Nutshell version: Assuming that a Catholic institution could, given all the givens, non-culpably comply with the mandate (whether what Brother Hockett calls "Mandate 1.0" or the floated-but-not-yet-existing "Mandate 2.0"), it does not follow that the mandate is unobjectionable, or not inconsistent with a commitment to religious freedom. As Miller puts it:
. . . The fundamental problem with the contraception mandate is not that complying with it involves objecting employers in moral wrongdoing. At least for some employers, it may well do that, and this certainly makes the mandate morally objectionable, but this is not the fundamental problem. The fundamental problem with the mandate is that it coerces some people into doing what they think is wrong, and this problem remains regardless of whether the coercion excuses the actions of the people being coerced.
Tuesday, February 21, 2012
As Helen Alvere and Kim Daniels explain on National Review Online:
. . .over the past several days we’ve heard House Minority Leader Nancy Pelosi and others repeatedly ask those who oppose the contraceptive mandate, “Where are the women?”
Here we are.
We listened to prominent women purport to speak for us. We watched them duck the fundamental religious-liberty issues at stake. And we saw them assume that all women view cheaper contraceptives and abortion-causing drugs as unqualified goods.
In response, we circulated an open letter to a few dozen of our female friends in support of the competing voice offered by Catholic institutions on matters of sex, marriage, and family life. The letter spread, and in 72 hours we received some 750 signatures from a diverse group of women across the country, including women serving overseas. Signatures are still flooding in. Doctors, nurses, lawyers, teachers, mothers, business owners, community volunteers, scholars — women from all walks of life are proud to stand together with the Catholic Church and its invaluable witness.
I was one of the 750 woman signing on to this letter from the beginning, though my name hasn't yet made it onto the website. More from the letter.....
Those currently invoking “women’s health” in an attempt to shout down anyone who
disagrees with forcing religious institutions or individuals to violate deeply held beliefs
are more than a little mistaken, and more than a little dishonest. Even setting aside their
simplistic equation of “costless” birth control with “equality,” note that they have never
responded to the large body of scholarly research indicating that many forms of
contraception have serious side effects, or that some forms act at some times to destroy
embryos, or that government contraceptive programs inevitably change the sex, dating
and marriage markets in ways that lead to more empty sex, more non-marital births and
more abortions. It is women who suffer disproportionately when these things happen.
Another great contribution to this "roar" is Erika Bachiochi and Catherine Pakaluk's article questioning just how good the Pill has really been for women:
And this points to an unresolved difficulty with the contraceptive revolution, which was supposed to serve women above all: Women on the whole disproportionately bear the burden of the new sexual regime. They are expected to dose themselves with a Group 1 carcinogen for approximately two-thirds of their fertile years. They sustain greater emotional costs from casual sex. They are at greater risk of contracting STDs and disproportionately suffer from their long-term consequences, such as cervical cancer and fertility loss.And even after 50 years with the Pill, as many as half of all pregnancies are still unintended. Women, not men, must make the heart-wrenching choice between abortion, reckoned a tragic outcome even by its supporters, and bearing a child with little to no paternal support. After all, since children were negotiated out of the bargain by the availability of contraception and abortion, men have secured a strong rationale to simply ignore or reject pregnancies that result from uncommitted sexual relations. Nobel-laureate economist George Akerlof predicted nearly two decades ago that this would lead directly to the feminization of poverty, as it ruefully has.
The Supreme Court of Canada has rejected the claim that the refusal of the school board to allow an exemption from the controversial Ethics and Religious Culture Program voiolates the rights of the parents who sought to exempt their children from the ERC program. The case, S.L. v. Commission scolaire des Chenes, is basically the Canadian version of the Mozert case. The parents argued that the program, which they contended promoted relativism, interfered with their ability to control the education of their children. The Supreme Court of Canada concluded that the mere exposure of the children to the program did not infringe their freedom of religion because the children were not forced to join any of the religions discussed in the program.
Richard M.Matt Yglesias, a respected blogger and writer for Slate, offered this "tweet" yesterday:
Newfound GOP enthusiasm for religious exemptions from generally applicable laws seems dangerously close to sharia.
Judging from his past writing, my guess is that this was a tongue-in-cheek jab at GOP candidates' disturbing tendency to use the "Sharia" label as a punching bag on the campaign trail. I fear, though, that it is a harbinger of sincere arguments to come, as reasonable, right-thinking folks are asked to line up in either the Enlightenment camp or the Theocracy camp. Nuance may be in short supply.
On February 17, 2012, the Alabama Supreme Court decided Hamilton v. Scott. The case involved an interpretation of Alabama's wrongful death statute. The Court held that Amy Hamilton had a claim under the statute even though her unborn child died before viability. The most interesting aspect of the case is a special concurrence written by Justice Parker. The concurrence presents an extended critique of Roe's viability standard. Here is the conclusion:
"Roe's viability rule was based on inaccurate history and was mostly unsupported by legal precedent. Medical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development. And together, Alabama's homicide statute, the decisions of this Court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun's words, "reluctant ... to accord legal rights to the unborn." For these reasons, Roe's viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court." David Smolin comment on the opinion is instructive. Smolin noted--"It is philosophically, morally and ethically problematic to consider a human as a person for some things and not for others. It makes us uncomfortable with elective abortion. The more places where the law puts them as a human person, the more it makes us think about what we are doing with abortion." Richard M.
Monday, February 20, 2012
Last week I mentioned I'd been in Albany and for that reason had to take a bit more time to give Robby's and Sherif's Morals and Mandates the time and attention it deserved. Having spent a fair bit of time on that forceful piece now, I'd like briefly to return to the subject of that Albany trip. For that trip, too, was concerned with a matter that is as fully a matter of the Church's concern as are its schools and hospitals and their expressive/magisterial freedom - viz. families and their homes.
As some of our readers might know, I moonlight on Fridays and weekends at the New York Fed, an involvement which stems from my academic involvement in monetary and financial law both domestically and globally considered. A large part of that bailiwick, in turn, is occupied these days by attention to the all-important mortgage markets - and, less coldly and bloodlessly, the families that owe mortgage debt in those still troubled markets.
In the wake of the bubble and burst that culminated in 2008, as we know, many American families have been left with mortgages that are 'under water.' That is to say that their debts, denominated as they are at fixed rates, have not plummetted as have the variable rates of their market-valued homes. This in turn means that many families will be faced with near-bankruptcy and possible foreclosure unless and until some form of mortgage-restructuring, probably involving principal write-downs accompanied by shared-appreciation agreements and capital-regulatory forbearance, can be done on a larger scale than HARP, HAMP, and other initiatives thus far have proved able to do in the face of creditor collective action problems.
Such is one upshot of Dan Alpert's, Nouriel Roubini's and my Way Forward white paper to which Rick kindly drew readers' attention last October when Joe Nocera discussed it in his NYT column. And so, much of what I do these days concerns how we might set about that large, formidable task as described in The Way Forward.
As it happens, however, there also are many mortgages faced with possible foreclosure that has little to do with 'underwater' status or any other difficulty other than temporary un- or under-employment of the sort that we often experience in times of macroeconomic slump. Because all it takes is 60 days' delinquency to trigger default and foreclosure on many mortgage contracts, mortgagors who are temporarily laid off or partly laid off can, with their families, find themselves suddenly faced with loss of a home through little if any fault of their own notwithstanding their general creditworthiness.
The harms that these innocent people face, moreover, ultimately redound to the harm of their lenders, their neighborhoods, the home and mortgage markets and the broader macro-economy as well. Rigidities introduced by the lending contracts, moreover - particularly those that are securitized - typically prevent even value-maximizing forbearance or adjustment on the part of servicers. We are accordingly faced with a classic market failure that harms all concerned parties.
Against this backdrop, a colleague - Michael Campbell - and I have drafted legislation inspired by a highly successful Pennsylvania program that comes down to us from back in the great Robert Casey days. We call ours the Home Mortgage Bridge Loan Assistance Act (HMBLAA).
Pennsylvania's Home Emergency Mortgage Assistance Program (HEMAP), upon which HMBLAA is loosely patterned with the benefit of hindsight, has a near 30-year track record of keeping lenders paid, families in their homes, and the public fisc almost entirely unaffected. It has managed this simply by extending temporary bridge loan assistance to families whose breadwinners are temporarily unemployed or underemployed through no fault of their own, which loans are repaid in full once employment resumes. It is made to order for times of temporary slump like the present.
Michael's and my plan incorporates many administrative lessons learned from the HEMAP experience. The New York City Bar Association - on whose Banking Law Committee we both sit, Michael as Chair - and now the New York State Bar and the New York State Bankers Association all now have come down in support. Our hope, as well as our now increasingly reasonable-looking belief, is that not only New York, but other states too, as well as Congress, will soon pass HMBLAA and/or counterpart legislation much like it. It could work very well in states like Ohio, Indiana, and others disproportionately hit by the nation's current economic woes.
Michael and I have received much in the way of helpful suggestion from private and public sector lawyers and financiers alike in the process of developing this proposal, but can always do with more. I hope, then, that interested readers might click on the links below and let me know what they think. The first link is (once again) to the statute itself. The second is to a white paper we've drafted in support of the statute, complete with a regulatory impact analysis conducted by colleagues at the Fed. Please let us know what you think!
The Home Mortgage Bridge Loan Assistance Act of 2012
Thanks again to all.
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