Last night, I participated in a panel discussion, sponsored by the Notre Dame Right to Life student group, on the HHS preventive-services mandate. My focus was on the religious-freedom dimensions of the debate. Here is a story about the panel from the campus newspaper. And, here are the notes from my talk:
Because I am a lawyer, I cannot resist splitting hairs. And so, I want to distinguish my question – the “religious freedom” question – from three others.
First, I am not talking about whether we think the “Affordable Care Act” is good policy, or whether the insurance-coverage mandate is constitutional, or whether we prefer the Democrats' health-care-related propossals to the Republicans'. These are perfectly good questions, but they are different from the question whether religious employers should be exempt from the preventive-services mandate. This question is not – it should not be – a “liberal” or a “conservative” issue. Democrats and Republicans agree – liberals and conservatives agree – that America’s commitment to religious freedom is foundational, and fundamental.
Second, I am not talking about the merits of the Church’s teachings on sexual ethics, or about the social and other effects of contraception. These are also – obviously – important questions, and others can speak more usefully about them than I can. My point is, it should not matter, for purposes of the religious-freedom question, whether or not you are a Catholic, or whether or not you embrace the Church’s vision of human sexuality. Remember: It is always the case, in religious-freedom cases, that we are talking about the protection of minority views. The whole point of constitutional protections for religious freedom, and of “accommodations” and “exceptions,” is to protect and respect minority and unpopular views. After all, the views of the majority, and popular views, do not need special protection.
Third, I am not talking about the important, technical questions about whether it would constitute “cooperation with evil” for Notre Dame or other religious employers to comply with the mandate. Smart people disagree about this question. But, this question is different from the religious-freedom question. The “religious freedom” of institutions like Notre Dame is not just the freedom to avoid being coerced into doing wrong. It also includes the freedom of Catholic institutions to bear witness to the truth of the Faith, to act with integrity, and to act coherently, in accord with their Catholic character.
So, all that said, I want to (very briefly) mention three aspects of my question, the “religious freedom” question.
First, is the mandate unconstitutional? Does it violate the First Amendment? My answer to this question is . . . possibly. [Explain.]
Second, is the mandate illegal? That is, does it violate a federal statute, the Religious Freedom Restoration Act? I say . . . probably. [Explain.]
Third, is the mandate inconsistent with our traditions, and with our longstanding commitment to pluralism and religious freedom? Here, I say . . . yes. Even if we assume that the mandate is constitutional under current doctrine, and that it does not violate RFRA, this does not mean that it respects religious liberty, or that it is consistent with our traditions of accommodating minority views and valuing pluralism. Sometimes, a democracy like ours, with ideals like ours, accommodates religious freedom even when it does not have to. In this case, the better policy – the policy that better implements our commitments – is to provide a broader religious-liberty exemption to the preventive-services mandate. . . .
A significant trial began in Philadelphia this week. A similarly important hearing took place in Kansas. Both cases may indicate a sea change in how jurisdictions will seek accountability of Catholic Church officials for their role in failing to protect children from clerical perpetrators.
As most MOJ readers know, two priests are on trial related to the child sex abuse scandal of the Philadelphia Archdiocese. Originally three defendants were to be tried together. Former priest Edward Avery and current priest James Brennan were accused of conspiracy and sexually assaulting children. What makes this case particularly legally interesting is the third defendant, Msgr. William Lynn, who is not accused of assaulting children. However, he is accused of endangering the welfare of children and conspiracy in his role as Secretary for the Archdiocese. As the New York Times described it, "[t]he defendant, Msgr. William J. Lynn, 61, is the first Roman Catholic supervisor in the country to be tried on felony charges of endangering children and conspiracy — not on allegations that he molested children himself, but that he protected suspect priests and reassigned them to jobs where they continued to rape, grope or otherwise abuse boys and girls."
The history of the case is lengthy and dramatic. This reality continued last week when Avery pled guilty to conspiracy and sexually assaulting a boy in 1999. He was sentenced to 2 ½ - 5 years incarceration. During the plea, a local television station reports that "Avery also admitted in court that Msgr. Lynn knew that he had sexually abused children but had nevertheless allowed him to remain in ministry." As a result, Msgr. Lynn moved to delay the trial and select a new jury, arguing that jurors could not have avoided the pretrial publicity and would be tainted. On Monday the judge and counsel individually questioned the jurors and two were dismissed as a result of their exposure to the news coverage. The case began as scheduled.
Prosecutors outlined their case Monday in an hour long opening. (In full disclosure, I am a former Philadelphia Assistant District Attorney.) According to the Philadelphia Inquirer, the theme of the prosecution's opening statement was that Lynn was in charge of investigating allegations of abuse and also of protecting the Archdiocese, he "could not do both," and "chose to spare church leaders and his fellow priests from scandal at the expense of victims and the public." Lynn's defense lawyer's opening theme was to suggest that Lynn was the only person working on this problem and the failure to act and assignments were made by those above him, to include the now deceased Cardinal Bevilacqua. Brennan's defense counsel presented a defense of attacking the credibility of his accuser.
The Washington Post reports that the first day of trial included a list of molesting priests allegedly prepared by Lynn. Avery was on that list. The witnesses testified that although Avery was removed from his parish because of his sexual abuse, his parish was misled as to the reason he was ultimately reassigned and lived at a parish connected to a school. The Philadelphia Inquirer reported that,
[Lynn's] letters to two of Avery's parishioners, read aloud today to jurors at Lynn's trial, praised the priest [Avery] and urged them to disregard any unflattering whispers they might have heard.
"Let me assure you, that is what they are: rumors," Lynn wrote one woman. "Father Avery had requested a health leave from Cardinal Bevilacqua, which was granted."
The trial is expected to last several weeks.
Much of the commentary mentions this is the first trial of its kind. However, yesterday in Kansas, another hearing took place. Kansas Bishop John Finn has been charged with failing to report a fellow priest for his child pornography collection. Today, Finn's lawyers moved to dismiss the charges, arguing, he "did not have a legal obligation to report suspected child sexual abuse by a local priest even if he knew about it…." The Court has taken the motion under advisement.
How the respective courts and juries respond to these charges will likely influence the future decisions of prosecutors. These decisions will also, no doubt, be influenced by how well dioceses are doing in actually fulfilling their obligation to protect the children of their parishes. The role of the "institution" in abuse and its cover up is one critical to explore as we grapple with the reality of child sexual abuse in our culture. No doubt these trials will offer some insights.
I've posted a new paper, How Necessary is the Right of Assembly? Here's the abstract:
This paper continues the conversation initiated by John Inazu's new book, Liberty's Refuge: The Forgotten Freedom of Assembly, by locating Inazu's analysis within our legal system's broader struggle to reconcile liberty claims by groups with our commitment to the individual's rights-bearing primacy. I underscore the timeliness and relevance of his approach, then ask three questions: 1) Why does Inazu limit the freedom of assembly to non-commercial groups? 2) Is Inazu's argument more appropriately pitched to judicial or political actors? and 3) If the right of association were to be interpreted less narrowly by courts, could it carry the burden that Inazu seeks to lay on the right of assembly?
Feedback is welcome.
