Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 12, 2014

"Doctoring Discrimination in the Same-Sex Marriage Debates"

That's the title of an article in the current issue of the Indiana Law Journal, by Washington University St. Louis law professor Elizabeth Sepper.  The article is available here.  The abstract:

As the legalization of same-sex marriage spreads across the states, some religious believers refuse to serve same-sex married couples. In the academy, a group of law and religion scholars frames these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. They model their proposal on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation, they say, would dispel conflicts over same-sex marriage and lead to acceptance of gay couples’ relationships.

This Article argues that same-sex marriage objections lack the distinct and compelling features of conscientious objection recognized by law. It offers the first systemic critique of medicine as a construct for the same-sex marriage debates. It demonstrates that legislative protection of conscientious objection traditionally has been limited to life-and-death acts for which the objector has direct responsibility and further justified in medicine by ethical commitments particular to the profession — bases that are absent from the marriage context. By identifying the theoretical foundation of conscientious objection protections, this Article provides the groundwork for distinguishing between conscience claims that can be justified and those that cannot, in medicine and beyond.

This Article further contends that the experience of medical conscience legislation represents a cautionary tale, rather than the success story that marriage conscience proponents claim. Conscience protection in the medical model could actually increase conflict and entrench opposition. Ultimately, these critiques undermine the theoretical and practical foundations of “marriage conscience protection.” They suggest that antidiscrimination law, where we have traditionally balanced religion and equality, constitutes a more useful lens through which to view religious accommodation.

 

Berkley Center program on the HHS mandate, accommodations, and religious freedom

This event, thanks to the Berkley Center's Religious Freedom Project (in Washington, at Georgetown) looks great:  "Everybody's Business:  The Legal, Economic, and Political Implications of Religious Freedom."  Here's their blurb:

Is religious freedom good for business? Can religious liberty aid economic development, or help reduce poverty? What are the limits of religious freedom? Under the law, are for-profit businesses entitled to the exercise of that right in the United States? Does the HHS contraceptive mandate under the Affordable Care Act restrict the religious freedom of businesses? What are the legal, economic, and political implications of the answer to that question?

On March 24, the day before Supreme Court oral arguments on the Hobby Lobby case, the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace & World Affairs will co-sponsor a half-day conference on these and related questions. The conference will announce a new partnership between the Religious Freedom Project and Baylor University’s Institute for Studies of Religion, the co-sponsor of the event. The conference will begin with an “On Topic” keynote conversation between Baylor University President and Chancellor, Judge Ken Starr, and Harvard University Law Professor, Alan Dershowitz.

Stupak Op-Ed and Brief

Thanks, Rick, for posting about Bart Stupak's USA Today op-ed. (You're always faster than I am!)  As many readers know, Rep. Stupak joined with Democrats for Life of America in an amicus brief in the HHS cases, on which I was counsel of record. The brief argues that there is a distinctively strong tradition of protecting conscientious objections to abortion, one that should inform the interpretation of the Religious Freedom Restoration Act. The op-ed condenses the arguments of the brief.  It also expresses very well Rep. Stupak's belief that to the extent the HHS mandate covers Ella, IUDs, etc., the government has failed to fulfill the spirit of its commitment that the Affordable Care Act would not pressure the consciences of objectors to abortion.

Bart Stupak on the HHS mandate "double-cross"

This opinion piece by former Congressman Bart Stupak -- a pro-life Democrat whose support was crucial to the passage of the Affordable Care Act -- appears in USA Today.  Here's a bit:

I had hoped that more of my Democratic colleagues would object to the way the contraception mandate has been applied.  During the battle over the ACA's passage, pro-life Democratic members of Congress negotiated with the president to ensure that the Act would not be employed to promote abortion.  During the final debate on the Affordable Care Act, I engaged in a colloquy with Chairman Henry Waxman reaffirming that Americans would not be required to pay for abortions or violate their conscience by participating in or promoting a procedure they find morally objectionable.   In response, we received an ironclad commitment that our conscience would remain free and our principles would be honored.  With our negotiations completed and our legislative intent established by the colloquy, we agreed to an executive order directing federal agencies to respect America's longstanding prohibitions on government funding of abortion and most relevant here, to respect longstanding protections for individuals and organizations conscientiously opposed to participating in or facilitating abortions

Hamburger on "Equality and Exclusion"

Philip Hamburger has this short piece, which distills arguments that he makes in this very interesting article. I highly recommend both. The abstract of the long piece and a few quick highlights:

Religious Americans are substantially excluded from the political process that produces laws, and this prompts sobering questions about the reality of religious equality. Put simply, political exclusion threatens religious equality.

The exclusion is two-fold. It arises partly from the growth of administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. It also arises from section 501(c)(3) of the Internal Revenue Code. As a result of this section, even when law is made in Congress (or an elected state legislature), religious organizations are restricted in their freedom to petition and to campaign for or against their lawmakers. There thus is a broad exclusion of religious Americans and their organizations from the political process that shapes lawmaking, and Americans thereby have lost essential mechanisms for persuading their lawmakers to avoid burdening their religious beliefs. 

Religious liberty thus comes with an unexpected slant. Courts blithely assume that America offers a flat or even legal landscape — a broad and equitable surface on which all Americans can participate equally, regardless of their religion. The underlying exclusion, however, tilts the entire game, so that apparently equal laws actually slant against religion. What is assumed to be a flat and natural landscape turns out to be an artificially tilted game.

The conceptual framing of religious liberty therefore needs to expanded. The central conceptual problem for the free exercise of religion is usually understood as the choice between exemption and equality — the choice between a freedom from equal laws, on account of one’s religion, and a freedom under equal laws, regardless of one’s religion. The conceptual problem, however, turns out to be more complicated. In addition to the constitutional choice between exemption and equality, one must also consider the role of exclusion.

Of course the political exclusion of Americans as a result of the growth of the administrative state would not affect only religious Americans, and Philip recognizes this in the paper. But his particular focus is on the political exclusions that the administrative process has worked on those with religious convictions--and particularly on those whose religious convictions run contrary to or are in tension with the commitments of those in political power.  "Those who are sailing with prevailing winds, theological and political, do not suffer much from the exclusion."

The argument about section 501(c)(3) is particularly interesting. As is well-known, this provision offers a kind of deal to religious, educational, and charitable organizations: so long as you do not campaign and advocate for political persons and causes, the state will not tax you. The common justification for the imposition of these constraints is that they are merely conditions on spending, but Philip argues here (as he has before) that limits on government power cannot be waived by consent--"private consent cannot enlarge constitutional power." Constitutional rights are not "tradable commodities." So the government cannot cut the deal it has cut in section 501(c)(3); it has no power to do so. Philip also questions the idea that exemptions are the same as expenditures for purposes of the spending power. "If refraining from taxing amounted to spending, then all Americans continually would be recipients of government largesse, for the government might have taxed them at a higher rate, and the decision not to impose the higher rate would be a tax expenditure." If that were true, the government could apply 501(c)(3) against all Americans.

The idea here is that the reason not to tax churches and religious organizations is not that they made a deal with the government in exchange for which they are get the privilege of an exemption. The reason not to tax them is that taxes are not proper as against organizations whose principal mission is nonprofit. Exemptions here are merely mechanisms for recognizing that a tax is inappropriate for organizations that ordinarily have no income. Philip then takes aim at the various justifications for the partial political exclusion worked by 501(c)(3)--that the restriction is "not draconian," that allows other avenues for religious groups to participate in the political process (the Russian Doll analogy to what is permitted by 501(c)(4) was particularly effective), the 'we need a mechanism to stop tax deductible political contributions' claim--arguing that none of them is sufficient to counter the constitutional problems.

Here's a thought experiment in the piece: suppose the government attempted to apply 501(c)(3) restrictions to professors. Professors are supposed to be disinterested observers, so the government decides to make a distinction between academics and politics. Therefore, as professors (as opposed to as private individuals), they cannot engage in any campaigning or substantial petitioning. After all, professors benefit from a whole lot of federal spending on their students and their univerisities, so it's perfectly ok to condition federal aid to universities on the absence of political participation of various kinds by professors. And, anyway, if they were true academics, they wouldn't engage in politicking anyway. I suspect many would think this quite absurd. And as Philip says, "[t]he larger constitutional point is that the reasons for suppression are plentiful, but this does not mean that they make the suppression constitutional." 

Tuesday, March 11, 2014

Opderbeck on "The Problem with Neurolaw"

This paper, by my friend David Opderbeck -- whose work is probably familiar to MOJ readers -- should be of interest.  In "The Problem with Neurolaw", Prof. Opderbeck "argues that a revitalized sense of transcendence is required to avoid the violent metaphysics of reductive neurolaw and to maintain the integrity of both 'law' and 'science.'"   

"The Transformation of Liberalism"

This essay, by Thomas Powers, appeared more than a decade ago in National Affairs.  I imagine many readers are already familiar with it, but I was not.  It was, for me, helpful (and sobering) with respect to our currently boiling arguments about religious accommodations and exemptions from generally applicable laws and -- relatedly -- about the tension between religious freedom, on the one hand, and some antidiscrimination policies and laws, on the other.  Read it, if you haven't already, or re-read it, if you already have.

Friday, March 7, 2014

The Korean Peninsula Today and the Moral Justifications for the Cold War

It has become fashionable in some precincts to disparage America’s concerted and persistent opposition to the geopolitical aspirations and Marxist ideology of the Soviet Union (and later communist China) during the four decades following World War II.

Today, the Cold War is remembered by some as a regrettable period of belligerence by the United States, which depended too much on military force and neglected diplomacy and accommodation as tools of foreign policy.  These detractors sometimes portray both sides in the Cold War struggle as morally equivalent, arguing that neither deserved to be characterized as heroes or villains.  They dismiss the Cold War as an ancient and melodramatic morality play, having little or no moral implications or continuing political significance.

The events of the past couple of weeks remind us that the Cold War may have grown colder after the collapse of the Soviet Union, but it never truly ended.  More importantly, we are reminded again of the noble sacrifices made by tens of thousands of Americans and countless others to secure the blessings of liberty and economic opportunity for hundreds of millions of people across the globe.

The invasion of Ukraine last week with masked soldiers and the effective annexation of Crimea bring to the fore once again the nationalist agenda of Russia.  Russian expansionist ambitions have always been with us, though interwoven during the Cold War with the ideological conflict.

Less than a year-and-a-half ago, Republican presidential nominee Mitt Romney claimed during a debate that Russia posed the greatest geopolitical threat.  President Barack Obama mocked Romney by saying, “the 1980s, they’re now calling to ask for their foreign policy back because, you know, the Cold War’s been over for 20 years.” (video here).  Then-Secretary of State Hillary Clinton remarked that Romney’s comment was “somewhat dated to be looking backwards instead of being realistic” (video here).

No one is laughing today.  Indeed, in a rather stunning about-face, Hillary Clinton now compares Russian President Putin’s occupation of the Crimea with Nazi Fuhrer Hitler’s invasion of Czechoslovakia and Romania in the 1930s (here).  And no one doubts that Russia will continue to act aggressively, in Ukraine and Georgia and perhaps elsewhere in eastern Europe, when it finds doing so in its interests.

An even more powerful rejoinder to those pundits who denigrate the moral salience of America’s stalwart stand against communism may be found in the release last week by the United Nations of a report on human rights violations in North Korea.  The report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea is a sobering reminder of what was at stake in the Cold War.

As reported by CNN (here), the commission’s report offers “a stunning catalog of torture and the widespread abuse of even the weakest of North Koreans.”  Murder, torture (of men, women, and children), jailing and slavery for entire families, and mass starvation are widespread in North Korea, keeping an entire nation in submission to the whims of a totalitarian regime that monitors every aspect of human life.  As a sadly typical story of cruelty in that communist abyss, one witness described the beating by prison guards of a starving woman who had just given birth, ending with her being forced to drown the baby.  The full report is available here (and is horrifying, but should be compulsory, reading).

The UN report also describes the targeted persecution, torture, and murder of Christians (here).  The North Korean regime regards Christianity as a “particularly serious threat” because “it ideologically challenges the official personality cult and provides a platform for social and political organization and interaction outside the State realm.”

The UN commission finds that North Korea maintains a brutally repressive regime “that does not have any parallel in the contemporary world.”  This portrait of North Korea is a rebuke to the entire world (and especially to China as North Korea’s sole remaining patron), as these atrocities to continue and worsen under the arbitrary rule of Kim Jong Un.  As Michael Kirby, the chairman of the UN commission concluded, “We cannot say that we didn’t know.  Now we do know.”

What horrors the UN report depicts could well have been the fate of every person living on the Korean peninsula.  By the summer of 1950, the communists from the north had conquered 90 percent of the Korean peninsula, including the most populous city of Seoul.  Later that year, the daring amphibious landing at Inchon by allied troops (most of them American Marines), led by General Douglas MacArthur, and then stubborn resistance over three more years, turned abject defeat into a fragile and incomplete victory that preserved the independence of South Korea.

Today, some seventy-five million people live on the Korean peninsula.  A third of them — those living above the 38th parallel — struggle pathetically for survival in what is effectively a nationwide prison camp.  ISS038-E-038300_lrgHunger, fear, arbitrary jailing, torture, and persecution are the daily plight of millions. 

The people of North Korea live in darkness, both figuratively and literally.  Accompanying this post is a night-side photograph taken from the International Space Station just two months ago — the bright lights to the top demark China and those toward the bottom right are from South Korea, while the dark area in between (that could be mistaken for open ocean) depicts an impoverished and lightless North Korea. 

But two-thirds of the Korean people — the fifty million who live in South Korea — participate in a successful democratic government, enjoy a standard of living that rivals that of those of us living in the developed economies of the West, and are free to worship according to their conscience.  Don’t tell these millions in South Korea, who escaped the fate of their brothers and sisters to the north, that the painful struggle against communism during the Cold War was not “good versus evil.”

More than 36,000 American soldiers gave their lives during the Korean conflict, perhaps the hottest spot during the Cold War.  Theirs was a noble sacrifice that we must never forget or diminish by misunderstanding. Their sacrifice truly counted for something then and even more today.  We give thanks for the freedom and prosperity enjoyed in the south — secured by the bravery of men fighting for a just cause.  And we grieve for the horror and slavery endured by those in the north, mindful of what could have been the tragic outcome for all — if faith had faltered, if resolve had weakened, and if the war had been lost.

Gay Former Vice Principal Sues Eastside Catholic

Attorneys for Mark Zmuda, the former Vice Principal at Eastside Catholic High School in Sammamish, Washington, have filed a civil suit against the school and the archdiocese today in King County Superior Court. I have not seen the complaint yet, but it is certain to make claims under the state antidiscrimination statute (RCW 49.60). I understand that lawyers for the school and the archdiocese already have a motion to dismiss prepared.

http://bigstory.ap.org/article/gay-vice-principal-sues-seattle-archdiocese

"State's last witness says unrepentant homosexuals are going to hell"

Reading over How Appealing's links to the news coverage of the Michigan same-sex marriage "trial," I could not help but notice the sensationalistic headline in this post's title: "State's last witness says unrepentant homosexuals are going to hell."

On cross-examination of an economist testifying on behalf of the state, the plaintiffs' attorney asked: " "Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? In other words, they're going to hell?"

The admission of improper testimony in a bench trial does not matter much in itself, but is this really how the cross-examination of an economist should have been allowed to proceed? I have no special expertise in the law of evidence, but this question about the economist's religious beliefs does not seem relevant, even with respect to trying to prove bias of the sort that one can question expert witnesses about, and the prejudicial value of the testimony in any event would seem to substantially outweigh whatever probative value it might have.

(For whatever it might be worth to note, this was the same trial in which Sherif Girgis was not permitted to testify as an expert witness.)