"Case could destroy pillar of union power," reports this piece in The Hill. I have not done so yet, but I feel pretty confident that if I made a tour of the leading blogs dealing with Catholicism, politics, social teaching, and so on, I would find an argument to the effect that Catholic Social Teaching supports labor unions and, therefore, a First Amendment ruling that the Constitution limits the ability of government to require employees to join (and support financially) unions and their activities would be (whatever its legal merits) inconsistent with that Teaching.
Now, this case (Harris v. Quinn) -- SCOTUSBlog (natch) is a great resource for leaning more -- does not seem to present the usual agency-shop situation: We are not talking about free-riding employees at a large company or business. Instead, this case is about home-health-care workers -- who do their work in the home of those they serve (in some cases, family members). A while back, Illinois decided that these home-health-care workers were, for purposes of unionization, public employees.
It is, obviously, a crucial aspect of the Church's social teaching that work and workers must be treated in accord with their dignity and that workers have a right to, among other things, associate so as to promote and protect their rights and interests. None of this means that labor unions are always on the side of the angels -- too often, especially in the education context, they are not -- but it certainly means that, again, the right to form labor unions must be protected and respected. But, it seems to me, this does not necessarily mean that home-health-care workers, simply because they are paid through Medicaid, constitutionally may or morally should be required to support financially a public-employee union. Stay tuned.
In reading Dr. King's Letter from a Birmingham Jail earlier today, I took note of something that I had not previously noticed before. The letter is from one minister to others. It is not a speech or an essay, but a letter addressed to "Fellow Clergymen." And an important theme of the essay is the failure of "white moderates" and of the "white church":
I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still all too few in quantity, but they are big in quality. Some -such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle--have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger-lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation. Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a nonsegregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.
But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.
When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.
In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.
I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.
Nestled in the middle of this indictment of the white church, King commends "the Catholic leaders of this state for integrating Spring Hill College several years ago." According to the Spring HIll College website:
Spring Hill College, Alabama’s oldest institution of higher learning, was founded in 1830 by Michael Portier, Mobile’s first Catholic bishop. Spring Hill is also the first Catholic college in the Southeast, the third oldest Jesuit college and the fifth oldest Catholic college in the United States.
Bishop Portier originally purchased 300 acres of land to establish a seminary and boarding school. The site sat on a hill six miles west of Mobile and afforded panoramic views of the city and its harbor. Portier recruited two priests and four seminarians from France to staff the school. He originally intended the boarding school to provide students under the age of 12 with an education in classical and modern languages, mathematics, geography, astronomy, history, belles lettres, physics and chemistry. Portier soon relaxed the age restriction, and the boarding population increased from roughly 30 students the first year to almost 130 by 1832. Initially, the bishop himself taught Greek at the school and, due to the lack of priests, pressed seminarians into service as teaching assistants or monitors. Difficulties staffing the school persisted until 1847, when Portier recruited French Jesuits from Lyon to take over.
Like other Jesuit colleges, Spring Hill followed a European model in which students began attending at age 9 and studied subjects at both the secondary and collegiate levels. The sons of Mobile’s established families – Catholic or otherwise – attended Spring Hill High School and the college. The high school persisted until its closing in 1935.
In 1932, the college launched an extension program with Saturday classes aimed at adults. For the first time women were admitted as full-time students to the program. Successive presidents of Spring Hill, Patrick Donnelly, S.J., and Andrew Smith, S.J., brought landmark changes to the college after World War II. Both men viewed racial segregation as an ethical and moral dilemma, and in 1954 Smith presided over the enrollment of nine African-American students to the college. For 10 years Spring Hill was the first and only integrated college in the Deep South.
This semester, the Center for Law and Religion at St. John’s Law School and Villanova Law School are teaming up to host the Joint Colloquium in Law and Religion. The course invites leading law and religion scholars to make presentations to an audience of students, faculty, and other interested members of the community. The schools will be connected in real time by video link so that students and faculty at both schools can participate in a virtual classroom experience.
My colleague, Mark Movsesian, and I are delighted to be hosting the seminar with Michael Moreland. I have listed the presenters, dates, and most of the paper topics below. Please write me a note if you wish to attend.
January 27, 2014 (at St. John’s) Michael Walzer, Institute for Advanced Study The Ethics of Warfare in the Jewish Tradition
February 10, 2014 (at Villanova) Sarah Barringer Gordon, University of Pennsylvania Law School The African Supplement: Religion, Race, and Corporate Law in the Early Republic
February 24, 2014 (at St. John’s) Kent Greenawalt, Columbia Law School Original Understanding: What is Relevant and How Much Does It Matter?
March 17, 2014 (at St. John’s) Donald L. Drakeman, Cambridge University Which Original Meaning of the Establishment Clause is the Right One?
March 31, 2014 (at St. John’s) Kristine Kalanges, Notre Dame Law School Transcendence and the Just Order
April 14, 2014 (at Villanova) Steven D. Smith, University of San Diego Law School Topic TBD
I have a column over at Commonweal discussing the historical practice of legislative prayer, which I claim is part of a broader set of American traditions involving providential benediction. The occasion for the column is the legislative prayer case now under consideration by the Supreme Court, Town of Greece v. Galloway.
It seems an iron law that the more I read my own writing, the more clumsy infelicities of phrasing I find. This piece contains this statement, for example:
At one point in the oral argument, Justice Kagan rightly observed that “when we relate to our government, we all do so as Americans,” not as religious or non-religious individuals. That is true, and legislative prayer is part of that American heritage. It is a mechanism for citizens to acknowledge these limitations—personal and systemic—before they make law and set policy.
Is it true that when people relate to their government, they do not do so as religious believers or nonbelievers, but as "Americans"? If it were true, it might well mean that one could not be both an American and a religious believer or unbeliever. But more than that, the statement implies that there is some sort of Americanism from which our other deepest commitments can and should be peeled off when citizen and state interact.
It would have been better to say: "When we relate to our government as Americans, we do so graced and adorned with all of our commitments, not stripped naked of them. And legislative prayer is part of that American heritage."
But that would have been today's column. Tomorrow's would amend other unpleasing expressions.
I have very much appreciated Greg's poverty- and inequality-related posts over the last several days, including that he has shared with us today. I do want to sound one cautionary note, however, concerning the observations made by Ari Fleischer to which Greg calls our attention this morning. I allude to the direction of causality in places where poverty and family composition are corrolated.
It is widely observed in the social science literature that people experience much greater difficuly in forming and maintaining stable families when they are in dire poverty. It is also widely observed that 'cultures' of child-bearing outside of stable family structures tend to develop in desperately poor communities. Even apart from the social science literature, many of us hear anecdotally or directly experience the near truism that one of the primary sources of marriage- and family-imperiling stress in contemporary society is 'money trouble.' And it is not difficult to imagine why families in which one or two parents must work very long hours, often at multiple low-wage fast-food or retail jobs, tend to be families in which children have little time with or guidance from their parents. This is precisely why many of our peer nations in Europe and East Asia not only work to ensure that the national income is distributed more equitably, but also mandate and/or directly subsidize generous family leave provisions in their labor laws.
Against this backdrop, Mr. Fleischer's column could have been titled 'Want to Fight the Breakdown of the Family? Then Fight Income Inequality' at least as plausibly as it is presently titled. And the paragraph quoted by Greg could just as well have read thus:
If President Obama wants to address 'the breakdown of the family,' he should focus more on redistributing income and thereby on fighting a major cause of family insecurity: poverty. . . According to Census Bureau information analyzed by the Beverly LaHaye Institute, among families living in poverty, just 7.5% were headed by two married parents. By contrast, 33.9% of impoverished families are headed by a single mother.
I suspect that there's a good bit of symbiosis at work in these correlations. Poverty renders family stability much more difficult to maintain, and unstable families in turn render poverty more difficult to escape. When it comes to public policy, however, I suspect that it is much more difficult for a government directly to effect more familial stability in impoverished communities than it is to improve employment rates, incomes, family leave provisions and educational opportunities. That, then, might be the best way to improve family stability.
If President Obama wants to reduce income inequality, he should focus less on redistributing income and more on fighting a major cause of modern poverty: the breakdown of the family. . . . According to Census Bureau information analyzed by the Beverly LaHaye Institute, among families headed by two married parents in 2012, just 7.5% lived in poverty. By contrast, when families are headed by a single mother the poverty level jumps to 33.9%.
Christianity Today has posted a story and a compilation chart on exemptions for religious objectors in the various same-sex marriage laws of the states. (The story also links to a more detailed version of the chart; the pared-down version and the story will also run in the new hard-copy issue of the magazine.) The story title "Evangelicals' Favorite Same-Sex Marriage Law?" is, of course, ironic. The story features explanations and comments from Doug Laycock (U. Virginia), Robin Fretwell Wilson (U. Illinois), and me. Robin, Doug, and I worked with the Christianity Today editors on the chart: it is Robin’s compilation, with input from Doug and me on the categories and the state characterizations.
This is a compilation, as user-friendly as possible, of the results in the states under both same-sex-marriage legislation and judicial rulings. (The latter, of course, are unlikely to set forth significant or specific protections for religious objectors, because no such concrete disputes are before the court that's ruling on same-sex marriage itself.) The chart attempts to organize and simplify a wide variety of exemption provisions in the states. I hope that it (and Robin's forthcoming article it will accompany) will be a valuable resource for people in the remaining states who will deal with these issues—as legislators, religious leaders, etc.—and who will want to propose as much protection for religious freedom as possible in their circumstances. Thank you to Christianity Today's editors, especially Sarah Eekhoff Zylstra, for providing this informative service.
We're entering a new period on this issue. Most of the states recognizing same-sex marriage so far have done so because of legislation; but the "low-hanging fruit" for same-sex-marriage proponents (the blue states) have mostly been picked, at least for now. (The underlying demographic shifts in favor of same-sex marriage will put more states in play politically in the future.) Now courts are ruling in favor of same-sex marriage, including in red states like Oklahoma and Utah, and the Supreme Court may do the same in the next few years. If red states are ordered by judicial ruling to recognize same-sex marriage, they may respond with markedly broader exemption provisions than have succeeded in the blue states. For example, in those states that are red enough to protect traditionalist objectors broadly, but "purple" enough to have some laws (even municipal laws) against sexual-orientation discrimination, exemptions might extend to small commercial businesses like the wedding photographer or landlord (something no state has yet done).
It's available here. It is, of course, not a secret that I believe the current Administration has not done well at protecting, respecting, and really grasping what religous freedom is and why it matters. That said, it can only be a good thing if words like these are coming from our President (any President):
America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.
I am, I admit, nervous about language like this, from last year's Proclamation:
Foremost among the rights Americans hold sacred is the freedom to worship as we choose.
Like Leslie Ford (here), I think it is very important to push back against suggestions that "religious freedom" is merely about the "freedom to worship" -- as Ford put it (in 2013), "[r]eligious freedom is not just for weekends in your home or place or worship. It’s a freedom that allows individuals to live out their beliefs and values every day of the week." But, I think it is worth hoping that the omission of "freedom to worship" language, and the use of "practice" instead, in this year's Proclamation is a good sign.
As my former student, at the Becket Fund, Adele Auxier Kleim, notes:
After a misstep last year, this year President Obama issued a proclamation calling religious freedom a “critical foundation of our Nation’s liberty,” and quoting Thomas Jefferson, who “declared religious liberty a natural right and any attempt to subvert it ‘a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.’”
And, here's more from Eric Treene (DOJ) and Melissa Rogers (White House), focusing on the good and important work done through RLUIPA.
Both the the Washington Post op-ed and HLR student noterecently linkedhere include the assertion that exempting employers from compliance with the contraceptives mandate imposes a burden on employees. This assertion presupposes a baseline entitlement to such coverage. Unless an entitlement to such coverage is built into the baseline, the absence of such coverage is not a burden. But if RFRA requires an exemption to the contraceptives coverage mandate, then the supposed baseline entitlement is illegal. And if the baseline entitlement is illegal, what is the argument for using it as one’s baseline?
The contraceptives coverage mandate is a product of regulations implementing Congress’s statutory commands. Importantly, the ACA does not supply the only statutory requirements that the government entities that drew up the contraceptives coverage mandate and its three-tiered scheme for religious objectors were bound to follow. These government entities were equally obligated to follow RFRA as well. If their regulatory imposition of the coverage mandate on religiously objecting employers violates RFRA, then the regulations that purported to create the entitlement were invalid. And invalid regulations should not be taken to supply the baseline for deciding what counts as a burden in legal analysis.
FIRST AMENDMENT — FREE EXERCISE OF RELIGION — TENTH CIRCUIT HOLDS FOR-PROFIT CORPORATE PLAINTIFFS LIKELY TO SUCCEED ON THE MERITS OF SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE CLAIM. — Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).
The concluding paragraph:
The Tenth Circuit in Hobby Lobby pierced the veil between the corporate plaintiffs and their shareholders, not to protect third parties, as veil piercing is meant to, but to protect the corporations’ expression of the Greens’ religious beliefs, even while the Greens maintained the benefits of limited liability. If for-profit corporations do merit RFRA protection, such protection should be limited to the corporations’ own religious expressions. In this case, failing to limit the protection imposed the costs of the Greens’ freedom of religious exercise on any of their more than 13,000 full-time employees who choose forms of contraception that violate the Greens’ religious beliefs; those employees must now pay out of pocket, despite having had only a statement of commitment to biblical principles to warn them that they might bear those costs.
