I've just returned from Albany - where, I am happy to report, my co-author Michael Campbell and I received favorable responses from the New York Bankers Association and and others to a mortgage bridge loan assistance statute that we've put together. (For those who might be interested, here it is: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1987093. And there's even a white paper in support: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1987159.) I've accordingly fallen a bit behind on matters HHS this past 24 hours or so, sad to say.
I've had a quick preliminary look at Robby's and Sherif's Morals and Mandates, however, and as one might have anticipated, I find it a tour de force - a very model of careful analysis of such data as we presently have. (And I do not say this simply because I teach a course titled Markets, Morals, and Methods!) I'll accordingly try to engage more fully with this important intervention in the days ahead, as well as with Marty's thoughtful response and Robby's careful step-by-step rejoinder. (And Sherif, I wish I'd known about you sooner, as I was at alma mater YLS last week to speak on global currency arrangements, of all non-HHS-related things.)
I would also like quickly while at it here to distance myself from a position that I fear Rick might inadvertantly be taken for attributing to me. I do not at all intend to suggest, per the first sentence of Ricks' recent post (http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-quick-response-to-steve-and-bob-re-scalia-accommodation-insensitivity-and-the-mandate.html), 'that we should not be too hard on the Obama administration for its insensitivity to religious freedom ... because Justice Scalia, in Smith, was insensitive to it, too.' (I doubt that Steve meant that either, but I leave the response on his behalf to his own far more capable hands.)
To the contrary of what Rick might mistakenly be taken to assert or imply, I believe that we should be quite hard on the Obama (and any other) administration for any insensitivity (or indeed contempt or indifference) that it might show to free exercise. That certainly includes the first rendition of the HHS mandate, and possibly includes the latest as well (a question, again, that I've abstained for the time being from addressing, pending further information and analysis). I think, moreover, that I have expressed a warranted degree of hardness in all posts on this matter since the present imbroglio - a fracas, alas, of the administration's own oafish making - commenced. And that is so notwithstanding - indeed it is partly because of - my belief that the President sincerely wishes to do the right - and not merely the expedient - thing.
I hope I have also made clear that I am not among those who think President Obama 'awesome.' Nor do I believe that most 'liberal,' 'progressive,' or sometimes 'leftward'- leaning Catholics who balked at Mandate 1.0 regard him that way either. Most of us, I would conjecture, even if we tend less often to find unalloyedly cynical motives behind the President's decisions than some of our friends on the 'right' seem to us sometimes to do, have found him rather disappointing on many scores thus far - too often insufficiently forceful both on behalf of social and economic justice and on behalf of free exercise. (His recent Osawatomie and State of the Union addresses, as well as yesterday's 2013 budget announcement, signal to me very welcome progress on the socio-economic justice - and, finally, sound macroeconomic policy - front, which I hope might be replicated on the free exercise front in what ever final shapes the HHS mandate and other actions might take. But I shall not on that account be ceasing to watch.)
What I did wish to suggest in my post to which Rick refers, and what I hope I did more than merely suggest, is that insufficient solicitude for free exercise is indeed bi- or non-partisan. (We've not here forgotten the infelicitously christened 'ground zero mosque' affair, I presume - in which Robby, I think, was heroic.) How ever one distinguishes Smith from Mandate 1.0 - and how could one not? - the fact is that Smith in its holding and tone troubled many on both sides of the Congressional aisle, and Justice Scalia's dismissive remarks (to an audience to which I referred earlier) about RFRA, passed in response to Smith, likely did little to vindicate him in the eyes of defenders of free exercise. Nor, I suspect, did his little performance of 'Babaloo.' And finally for present purposes, nor did Chief Justice Roberts's offhand characterization of sacramental peyote use in distinguishing Smith from Hosanna-Tabor, I think, do him credit. These missteps and misstatements are perhaps no HHS mandates, but they are surprisingly callous and, I believe, altogether regrettable.
My 'message,' then, I suppose is a platitude - or at any rate ought to be one: The forms of worship, both in liturgical contexts and in that more general conduct of life known as 'ethics,' which have developed among our sisters and brothers of most if not all faith traditions worldwide over the course of millennia, are just wondrous, precious, beautiful, awe-striking things. They spring of love and are immediately recognized by love and in love as ... love. I think it accordingly a deep, dreadful shame - indeed a 'sacrilege' - any time anyone acts or speaks merely dismissively or otherwise cavalierly in respect of any of them, be it by unjustly or unlovingling doing by others in their name, or by contemptuously or recklessly or negligently disregarding them in enacting laws or promulgating rules, or even by merely scoffing at or mocking them. And I fear that we find this, alas, all around - and on both sides of all aisles.
(And I am myself far from innocent.)
More soon. And thanks to all who are writing on this right now.
The conference schedule and registration information is available here. This year's theme is “The Place of Religion in the Law School, the University and the Practice of Law." See you there!
We are grateful to Marty Lederman for his reply to our Public Discourse article on the HHS mandate. We’re afraid, however, that its concerns stem from a misunderstanding of what we argued. Professor Lederman writes:
If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes…
He has, as he thought he perhaps had, misunderstood. In the passage that Lederman goes on to cite, and at other points in the piece, we explain that whether cooperation makes others’ immoral actions likelier is just one factor to consider. Other factors include (as we put it in the passage) “the false beliefs about right and wrong that people infer” from one’s cooperation, as well as one’s witness to the moral truths violated by the wrongdoer. (Regarding the latter, we wrote, the mandate would “dramatically compromise the mission of religiously affiliated institutions to give witness to the moral teachings of their faith.” It is true that they would remain free to express opposition to those practices. But their teaching would be taken less seriously, especially where its cooperation is with what it regards as grave injustices, like abortion.)
Again, we think most of Professor Lederman’s further concerns stem from this misunderstanding. First, he wonders whether it isn’t simply false to say, as we do, that “material cooperation often has worse effects as a result of being more immediate.” But by “effects” of one’s cooperation we included damage to one’s personal witness to moral truths, and other people’s adoption (or rationalization) of false moral beliefs. It can also include one’s emotional habituation to the wrongs in question. Properly understood, then, we believe the claim is quite plausible: the closer one is, the worse these effects—in general.
It is also clear (as we also pointed out in the piece) that the correlation doesn’t always hold. Thus, for example, if your own involvement is the most socially salient link in a chain leading to immorality (e.g., you’re a CEO or a football coach who fails to stop morally evil practices by subordinates), then the extent of the scandal given and the damage done to your witness won’t depend on how long the causal chain to wrongdoing is (unless, perhaps, its length is also very well-known).
It is true that some Catholic manualists treated the proximity of one’s cooperation as having moral significance in itself. We think that this was a mistake (and certainly no part of definitive Church teaching), but a mistake that can be explained easily enough by the general correlation between how closely one cooperates, and how much damage one’s cooperation does.
Second, Professor Lederman suggests that religious employers’ involvement will not lead to more acts of the conduct condemned as immoral. We agree that most people who would have used their employers’ plans to pay for contraceptives will obtain them otherwise. But if (especially large) employers who currently don’t offer such plans begin to do so, this will likely lead at least some to form the belief that their church’s teaching against contraception was not so serious after all, and rationalize using it when they would not have otherwise. Ditto, of course, for abortion drugs.
Third, Lederman asks whether our argument wouldn’t have the dubious implication that it is immoral cooperation with evil to (a) pay taxes that subsidize immoral practices, or (b) fail to forbid your employees to spend their salaries on products or activities the employer regards as morally bad. But if the signaling effects of material cooperation matter morally, then the concern about these examples essentially dissolves.
Thus, it is hard to believe that unless a small-business owner fires all employees who spend their salaries incompatibly with Catholic moral teachings, people would question his commitment to those teachings. Nor, again, does the employer’s role in the employee’s immoral spending risk eroding the employer’s emotional repugnance at those immoralities.
Similarly, though we should oppose the use of taxpayer funds for immoral practices and seek legislation to end it, paying taxes is (in most cases) many orders of magnitude less likely to be taken by others as an endorsement of all the government’s ends. (It’s also relevant that each individual’s taxes make a nearly infinitesimal causal contribution to any particular act of wrongdoing.) So you are (ordinarily) much less likely to give scandal or undermine your witness to certain moral principles merely by paying taxes, than Catholic Charities or the University of Notre Dame is by obtaining for its employees insurance policies by which they can cover abortion drugs. This is only more apparent in light of the fact that people (rightly) hold religious entities to higher standards of authenticity, and take deviation from their own teachings (especially the demanding ones) as especially strong evidence of unseriousness about them.
Furthermore, as we took for granted, any judgment about whether to accept certain side effects of a choice will depend on the side effects of the available alternative choices. The side effects of a general policy of firing anyone who ever uses his salary for ends an employer considers immoral—from buying lottery tickets to contributing to the Republicans (or Democrats) to eating meat—would, for many reasons, be disastrous. -- Sherif Girgis and Robert George
A few thoughts in response to Marty's post, from a few days ago, and to those others who have pressed, in defense of the mandate, the argument that the mandate is basically the same thing as a school-voucher program (in terms of burdening objectors' consciences).
I agree with Marty that there is no moral or religious-liberty right to object to paying (that is, to opt out of) taxes on the ground that the government, whose operations are in part funded by those taxes, does things to which one objects on religious. (So, Flast v. Cohen is wrong.) I think Marty and I also agree, though, that a situation in which the government says to A, “take some of your money and pay for X activity,” to which A objects on religious grounds? In my view, the original mandate (which, despite Friday’s announcement, is still the law-on-the-books) is more like the latter situation than the former (while the voucher question is more like the former). The question is whether the announced (but not yet enacted) change to the mandate moves the situation closer to the former.
I also agree that it should take something more than the assertion “X policy substantially burdens my free exercise of religion” to establish that X actually does, for RFRA purposes, burden the speaker’s free exercise of religion. But, what is that “something more”? We agree, I think, that RFRA-interpreting courts can inquire into sincerity, but can / should they inquire into the theological merits of the assertion? So, if Catholic Institution Inc. asserts that “it believes” complying with the mandate would substantially burden its free exercise of religion – in part because of its understanding of cooperation-with-evil analysis and categories – should the fact that there are prominent Catholic theologians and ethicists who say “no, actually, cooperation with the mandate would not be culpable” matter?
