The title of this post sounds, I know, like a parody of a blog-post title. That said, there's an interesting and important conversation / debate going on, between Michael Sean Winters and Cathy Kaveny, about law, religious freedom, and the HHS mandate.
Here is Kaveny's recent Commonweal column. Here is Winters' response to it, at Distinctly Catholic. And, as Michael Perry mentions below, here are the first two parts of Kaveny's four-part response (!) to Winters. Finally, here is a short post I did, the other day, regarding Kaveny's column.
The primary point of Kaveny's column, as I understand it, and also of "Part 1" of her response to Winters, is that "defining exemptions is not defining religion." (As she notes, one of the arguments often made against the mandate is that it does define religion, and that it does so too narrowly, in a way that wrongly confines religion and religious faith to houses of worship and to institutions that hire and serve co-religionists.) Now, it is true that, in fact, the mandate does not "define religion", in the sense that an anthropologist, theologian, or religious-studies scholar might do. (Indeed, such a scholar might say -- see, e.g., William Cavanaugh, The Myth of Religious Violence -- that the very idea or category of "religion" is more slippery than contemporary law-and-policy debates appreciate.) But, I'm not sure this really gets to (what is for me, anyway) the objection.
Yes, as I said in my earlier post, what religious-exemptions legal provisions (or other religion-touching provisions) are doing is not so much "defining religion" as employing various criteria to identify that which the relevant provision will treat, for purposes of the relevant regulation, as exempt. Still, the "defining exemptions is not defining religion" point is too quick, because it overlooks, I think, the fact that the exemptions in question exist for the purpose of honoring religious freedom. RFRA requires, in many instances, exemptions because RFRA has as its purpose the goal of respecting and protecting religion and religious freedom. So, the criteria that are used to identify that which is exempt are criteria that reflect the government's understanding of what religious freedom is and demands, of why religious freedom and religion are good, valuable, and to-be-respected. The criteria employed in "defining exemptions" tells us something -- they reflect premises -- about religion. And, if one starts from some premises about religion and religious freedom one will end up with different exemptions-criteria than if one starts from others. The criticism of the mandate, and of the administration, is that it started from the wrong premises (also reflected in its misguided -- extremist, actually -- brief in the Hosanna-Tabor case) about religious belief, religiously motivated activity, religious institutions and their role, etc., and that it therefore ended up with an overly narrow exemption -- and exemption that does not, in fact, do what (under RFRA) exemptions are supposed to do.
Kaveny also points out, correctly, that the mandate was not picked out of "thin air" but had, in fact, been "road tested" and upheld by some important state courts. This is true. In her view -- because "procedures" and "motives matter" (and they do) -- this fact cuts against the narrative that the HHS mandate reflects an insensitivity (or worse) to religious freedom. As I see it, though, the fact that the administration selected, from among a variety of alternatives, an unusually ungenerous exemption, notwithstanding the fact that the administration was on notice (through the notice-and-comment process) that a variety of religious groups strongly objected to that exemption, and without considering (as Sec. Sebelius admitted publicly) with care whether the exemption would satisfy the Religious Freedom Restoration Act's demanding requirements, suggests that the mandate was chosen not simply because it had been upheld in California, but because it seemed consistent with the decision-makers' (unsound) premises about the place, value, and rights of religious institutions.
In Part 2 of Kaveny's response -- addressing the (promised) "accommodation" -- she evaluates the (proposed new) exemption, and asks:
In order to answer this question, we have to recognize that claims of religious liberty are never treated as absolute. The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: “The mandate interferes with religious liberty…and it doesn’t serve a compelling state interest because it harms women and children, so it should be struck down.” That’s a no-go. The church can’t put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law.
It is true that an interest is not rendered non-compelling, for purposes of applying RFRA, simply because the interest does not cohere with the Church's teachings. It is also true, though, that the government's characterization of an interest as "compelling" does not end the matter. In constitutional litigation, courts scrutinize regularly and closely -- in cases where regulations burden fundamental rights -- the government's asserted interests to be sure (i) the stated interest really is the interest, and not just a cloak for something else; (ii) the stated interest really is weighty (and permissible); and (iii) the stated interest is being pursued in a way that burdens the fundamental right at issue as little as possible. Those of us who object to the mandate contend (among other things) that (a) the government's willingness to exempt a great many employers from the HHS mandate altogether undermines its claim that the interest is so compelling as to justify this burden on religious employers and (b) because less burdensome ways of pursuing the interest in question are available, they are therefore required by RFRA. The existence of RFRA, which commits the government to an accommodationist approach, rules out the argument that the mandate is the most convenient way of pursuing its interest.
I look forward to the next two installments!
Thursday, January 17, 2013
This paper byJohn Stinneford is very well done. One of the many nice moves that John makes is to connect the issue of culpability as well as the moral condemnation that sits at the heart of criminal law to the Constitution. Here's the abstract.
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.
This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.
John discusses the Supreme Court's movement toward constitutionalizing a "culpability principle" for criminal law (without actually ever going that far -- I enjoyed the discussion of Powell v. Texas). He grounds this culpability principle in various provisions of the Constitution (see pp. 665-666), most especially the 8th Amendment. There is also a very thorough discussion of several cases I did not know about, evincing in various ways the 19th and 20th century disjunction of culpability and crime, on the one hand, and the changing status of culpability as a constitutional safeguard against criminal punishment, on the other. As to the Court's proportionality decisions, John writes that in Harmelin v. Michigan the Court regrettably unmoored the issue of proportionality from that of culpability, a decision that had unfortunate but predictable consequences in Ewing v. California. And, maybe because I have been writing recently about law and tradition, I enjoyed John's discussion of the relationship between common law, morality, and criminal law.
