Friday, July 5, 2013
DeGirolami on Monsma
The final draft of my review of Steve Monsma's Pluralism and Freedom: Faith-Based Organizations in a Democratic Society, has just been published by the Journal of Church and State. I recommend the book for those interested in the institutional questions that have lately come to prominence in law and religion scholarship and doctrine.
Lumen Fidei
Pope Francis's first encyclical, The Light of Faith, (with the assistance of Pope Benedict XVI) has just been released. Here is the link: Lumen Fidei .
One of the most striking elements is the Holy Father's acknowledgment that the light of faith has been dimming in some sectors of the Church. For those of us interested in and involved with the project of Catholic legal theory, we need to reflect upon what else can be done to intensify the light of truth which God, through Jesus, has given us.
Pope Francis also reminds us that we must be like and be not like Peter: to avoid the temptation to deny our responsibility, and to embrace our duty to present the faith boldly through the efforts of our helping others distinguish clearly between right and wrong, good and evil, virtue and vice. As Blessed John Paul II often did, Pope Francis concludes with a prayer to Mary, our Mother.
There is much more to be pondered in this encyclical, and perhaps others will join me in offering thoughts about it in the coming days.
RJA sj
Thursday, July 4, 2013
Thoughts on the Big and Little Mandate
I've posted a few thoughts over here about the possible legal effect that delay in enforcement of the mandate that employers with over 50 employees provide health insurance for those employees might have on the contraception mandate. Those thoughts concern the effect on ripeness dismissals and the compelling interest standard under RFRA. The Becket Fund yesterday issued a statement that seems consistent with my ripeness discussion; given the finality of the rule, one would have to have an indication that the government were reconsidering that finality in order for ripeness considerations to be reactivated. But I am not certain about the title of the Becket Fund statement: "Abortion-drug Mandate Not Affected by Administration's Delay of Parts of Health Care Law." Might there be some effects, even if those effects do not relate to ripeness? Are there arguments about the contraceptives mandate that are affected by the decision to delay on the employer insurance mandate?
It would be useful to have some informed and thoughtful comment about the legal ramifications, if any, on the specific issue of the government's decision to delay enforcement of the "big" mandate on the pending cases involving the "little" mandate, either in response to my thoughts over at CLR Forum or otherwise. I hasten to add that I am not sure at all that there are any such effects; the provisions at issue are distinct. Just wondering.
UPDATE: Over in the comments at Volokh, Professor Jonathan Adler said this:
The problem is that the "big mandate" and the "little mandate" are based in different provisions of the law. One provision requires employers to provide qualifying health insurance or pay a penalty. A separate provision requires employer-provided plans to cover preventative services. The contraception mandate is based on the latter, and the penalties under this provision are far higher. The only way this decision can effect the contraception mandate is that it gives employers the option of avoiding the penalty by dropping their insurance coverage altogether, but they arguably have this option now in states with federal exchanges. The Administration's decision in no way insulates employers from the substantial penalties for failing to include contraception in their plans. In other words, this decision does not ease or delay the burden placed on any of the current plaintiffs.
And I said this in response:
Thanks, Jonathan. I suppose that's right. But might an argument like this work: by delaying the "big" mandate, the Administration is also saying something about the "little" mandate that might be relevant to the compelling state interest inquiry. That is because by delaying implementation of the big mandate, employers benefited by that delay will not need to comply with the little mandate as well. They will not need to provide contraceptive coverage to their employees during the delay. Employees of such employers will not get the benefit of the little mandate right now; the government's interest in getting them access to the benefits of contraception are yielding to the interests of the employers in cost, administration, etc.
So the argument from the point of view of the present plaintiffs might be: if the government's interest in the little mandate really were "compelling" (as that term is used in RFRA), the government would not be taking the steps that it is with respect to delay of the big mandate. It would be moving ahead at full speed to enforce that big mandate, in part to achieve the benefits of the little mandate for all of the employees out there that stand to gain. Instead, the government has chosen to selectively enforce the little mandate only as to those employers who already have a health plan in place. But if the government's interests in the little mandate truly were compelling (in the RFRA sense), then it would enforce that interest uniformly. It would not pick and choose when to enforce it. And it certainly would not permit the economic interests of employers interfere with its compelling interest.
I am not endorsing this argument. Just wondering whether it is a plausible one, even though the provisions are, as you say, different.
Prof. Adler is an astute observer of the constitutional scene and he has a firm grasp of the various provisions of the health care law, so he's probably right on this one. Still, any thoughts on this set issues would be welcome.
Tuesday, July 2, 2013
Freedom of Conscience as Religious and Moral Freedom
Some MOJ readers may be interested in this paper, which I just posted to SSRN (here). The abstract:
In a
paper I posted to SSRN last month — “The Morality of Human Rights” (June
2013) — I explained that as the
concept “human right” is understood both in the Universal Declaration of
Human Rights and in all the various international human rights treaties
that have followed in the Universal Declaration’s wake, a right is a
human right if the rationale for establishing and protecting the right —
for example, as a treaty-based right — is, in part, that conduct that
violates the right violates the imperative, articulated in Article 1 of
the Universal Declaration, to “act towards all human beings in a spirit
of brotherhood”. Each of the human rights articulated in the Universal
Declaration and/or in one or more international human rights treaties —
for example, the right, articulated in Article 5 of the Universal
Declaration and elsewhere, not to be subjected to “cruel, inhuman or
degrading treatment or punishment”—is a specification of what, in
conjunction with other considerations, the imperative — which functions
in the morality of human rights as the normative ground of human rights —
is thought to forbid (or to require).
A particular specification
is controversial if and to the extent the supporting claim — a claim to
the effect that the “act towards all human beings in a spirit of
brotherhood” imperative forbids (or requires) X — is controversial. My
aim in this essay is to elaborate and defend a particular specification:
the right, internationally recognized as a human right, to freedom of
conscience — to freedom, that is, to live one’s life in accord with the
deliverances of one’s conscience.
A more focused name for the
right is the right to religious and moral freedom. Jocelyn Maclure and
Charles Taylor begin their book Secularism and Freedom of Conscience
(2011) by stating that “[o]ne of the most important challenges facing
contemporary societies is how to manage moral and religious diversity.”
One indispensable strategy for managing religious and moral diversity
is, as I explain in this essay, the right to religious and moral freedom
— to freedom to live one’s life in accord with one’s religious and/or
moral convictions and commitments.
In the final part of the
essay, I explain why we are warranted in concluding that the
internationally recognized human right to freedom of conscience — to
religious and moral freedom — is part of, is entrenched in, the
constitutional law of the United States.
Monday, July 1, 2013
St. Gregory's University strenghens ties with church in Oklahoma
St. Gregory's University, the oldest higher education institution in the state of Oklahoma and the only Catholic university in Oklahoma, will become the only Catholic university in the nation with shared institutional ownership between a religious order (Benedictine) and diocesan hierarchy (the Archdiocese of Oklahoma City and the Diocese of Tulsa).” Archbishop Coakley said. “It’s my hope that this new form of governance will allow the university to play an even more central role in advancing the church’s mission of Catholic education in our state.”
This is great news for the university, the church in Oklahoma, and the state. In the interest of full disclosure, I should mention that I am Vice Chair of the University's Board.
Following Up on Religious Liberty and SSM
I begin by thanking Rick on his posting of earlier this afternoon concerning Ross Douthat’s and Matthew Franck’s pieces on the impact of the SSM juggernaut, last week’s decisions by the Supreme Court of the United States, and the impact of the letter that several of my friends here at the Mirror of Justice (i.e., Tom Berg and Rick Garnett) have been sending to various officials and law makers around the country arguing for robust religious liberty protection should same-sex couples be granted the legal ability to marry in these officials’ jurisdictions. I am grateful to Tom and Rick and their fellow advocates who have joined them in drafting and submitting letters and legal briefs to these officials, and I am confident that these letters and other documents are filled with sound and objective reason. That is the way the law is supposed to be and on which it is supposed to be founded: principled, moral and containing sound rationale that is objectively based. However, if one listens to the “arguments” offered by jurists, advocates, and supporters of SSM, one will find that the justifications offered to support conclusions and decisions are not formulated and presented in the same fashion. The same can be said of abortion supporters; the same can be said of advocates for euthanasia legislation; and, the same can or will be said about the work of sponsors for other morally problematic issues in the coming years.
Quickly returning to the matter of SSM, the central argument offered by its supporters is the need for equality, equal protection of the laws, and the necessary due process needed to advance the first two themes just listed. But as I and others have argued here and elsewhere, the equality argument does not hold when subjected to unbiased scrutiny; therefore, the adjunct equal protection and due process issues ineludibly fail.
What is important to many folks promoting SSM—as is the case with those advancing “abortion rights”, and, I am sure, some of the other morally problematic subjects to which I have referred—is not contributing to a sound, just, and equitable legal system but to victory—a victory at any cost especially if the cost is borne by their opponents. If either defeat or only partial victory is the result of their efforts, they will persist and return to legislators and judges seeking what they want, and they will persevere until they get what they want. Their superficial argument seems attractive, perhaps even compelling, when the word “equality” or the phrases “equal protection” and “due process of law” are thrown into the mixture. But what is really going on is not the protection of authentic equality by advancing equal protection and due process, but is, rather, the sacrifice of critical and objective reasoning and a moral evaluation of that which is essential to sound theories and, therefore, sound practices of equal protection and due process. Who gets caught in all this and whose substantial interests in the matter are sacrificed become less and less important until the promoters of change obtain their goals. What does this do to the law, its rule, and the laws presumably made under our Constitution?
They become totalitarian and positivist. And that is something which I do not think is compatible with our republican democracy or what the Framers of our basic law had in mind. If one thinks differently and reflects on the positive and despotic states since and including that of Henry VIII’s manufacture, one who sees merit in my perspective may also begin to connect the dots and realize what is going on. As one prominent academic sympathetic with the goals of SSM advocates has asserted in the recent past, when sexual liberty and religious liberty are in conflict, religious liberty (in spite of what the First Amendment objectively states) must yield to sexual liberty in most cases. Oddly enough, this is not in line with the plurality formula of liberty (a most problematic formulation, by the way) presented in Planned Parenthood v. Casey that presumably applies to everyone: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Perhaps what will be added in due course is this addendum: “unless one’s understanding of these matters is also based, at least in part, on one’s exercise of religious freedom.” In essence, then, the subtext of the Casey formulation will be: “Liberty for me, but not for thee!” I would not be surprised if those who intentionally or unintentionally are leading us on to a path to the positivist state might be considering such an amendment to a definition of freedom that is already knotty.
Being one who hopes in goodness and truth prevailing, I pray that this will not happen and that people of good will, such as Rick and Tom, can arrest with their colleagues this dangerous movement in time.
However, I am sufficiently grounded in history to know that if the drive to the positivist state and legal system has succeeded before (as it has), it can happen again. And if it does, those of us interested in developing Catholic legal theory will likely have to find something else to occupy our time. Perhaps helping to reform legal education, which is proceeding more and more in the direction of ideologies that support the positivist mindset I have briefly discussed, might be something to consider—but I, for one, have always thought that this is an important part of the project of Catholic legal theory in the first place.
RJA sj
Douthat on religious liberty and SSM
MOJ readers are probably aware that Tom Berg and I, along with some other legal scholars, have submitted letters to a number of state legislators urging them to include religious-freedom accommodations in laws that expand the legal definition of "marriage" to include same-sex couples. (Matthew Franck is underwhelmed by these efforts.) In any event, Ross Douthat touched on the issue, here, in his comments following the Supreme Court decisions last week. He writes:
Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today . . . .
We'll see . . .
"EU strengthens religious freedom"
Good news? Check it out.
Cardinal Dolan . . . and Fr. Murad
The horrifying news about the recent execution-style murder of a Catholic priest by Syrian terrorists makes Cardinal Dolan's recent op-ed on the importance of protecting religious freedom for everyone, everywhere, all the more relevant reading.
"If only Kermit Gosnell had worn pink sneakers"
Imagine a parallel universe in which the media coverage of legislators' recent efforts to pass gun control omitted any reference to last year's slaughter of 20 children and six teachers at Sandy Hook Elementary School.
David Freddosso explores the media's silence about the underlying reasons that Texas and other states are attempting to pass new regulations on the abortion industry.
As of Friday, the pink sneakers Davis wore on Tuesday night while standing up for late-term abortion were mentioned in more than 90 newspaper articles and 15 television segments, according to the Lexis-Nexis database. Yet a far more relevant detail — the reason this law was ever considered — received just four mentions in the papers and two on FOX News.
That reason, of course, concerns the lack of regulation that enabled the notorious Philadelphia abortionist and now-convicted murderer Kermit Gosnell.
UPDATE: I have added the link. Sorry, I thought I had done that when I first posted. Thanks WmBrennan for the heads up.
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