Mirror of Justice

Thursday, July 3, 2014

State Law Contraception Mandates and Post-Hobby Lobby Federalism

Susan is correct, of course, that several states (26 by statute and two by administrative ruling according to this from the NCSL; see also this summary from the Guttmacher Institute) require that employers include contraception in prescription drug benefit plans. While some include broad religious exemptions (eg, Texas), others provide no exemption at all (eg, Iowa) or, as in California and NY, an exemption limited in the same terms as the HHS mandate (which I wrote about a couple years ago here). There are ways around such state-law mandates, however, most notably in some circumstances through self-insurance, and part of the impetus for the HHS mandate under the ACA was to require coverage in all employer-provided plans (other than the diminishing grandfathered few or those entitled to the religious exemption) as well as those in the 22 states without a state-law mandate.

Because RFRA does not apply to the states under Boerne, challenges to state law mandates have to rely directly on the Free Exercise Clause of the First Amendment (with little chance of success, of course), state constitutional free exercise clauses, or state RFRAs. Such challenges--including the challenge (cert petition here) I was part of as an associate at Williams & Connolly ten years ago to the California mandate--have been unsuccessful. (One issue from that petititon that I think has never been fully explored is whether the carving up of what is a sufficiently "religious" institution to qualify for for an exemption poses Larson v. Valente Establishment Clause problems, but that has garnered about as much interest from courts as the argument on the other side that Caldor v. Thornton from the same era implies a broad rule that accommodations raise Establishment Clause problems.) Thus, the point made in this LA Times story that not much will change for many employees post-Hobby Lobby and the likely push in some of the remaining 22 states to enact contraceptive mandates.

Perhaps there are some important doctrinal Justice Kennedy-syle federalism-as-protecting-liberty reasons for this post-Hobby Lobby state of affairs (Howard Wasserman raises similar issues here), as well as an example of Rick Hills's "Westphalian" strategy of substituting conflicts over jurisdiction for conflicts over deeply contested moral questions. Justice Kennedy wrote the decision for the Court in Boerne holding that RFRA was not a congruent and proportional remedy for any state (or local government) religious free exercise violations of § 1 of the Fourteenth Amendment (a then much-criticized narrowing of Congress's § 5 power--times change). The federal government remains limited by RFRA in what it can impose on the nation by statute or regulation (see O Centro and Hobby Lobby). The states, however, can ratchet up or down levels of free exercise protection through interpretation of their state constitutional provisions, enacting state RFRAs, or crafting exemptions (or burdens, see Locke v. Davey), free from federal constitutional (see Smith, which Justice Kennedy joined) or statutory (see Boerne) demands.

State Law Contraception Coverage Mandates

By Susan Stabile

One thing I have not seen very much discussion of in the aftermath of the Supreme Court's decision in Hobby Lobby is the question of the continuing impace of state laws mandating contraception coverage. (This is a subject Michael Moreland and I and other have discussed here in the past.)

More than half of the states have so-called "contraceptive equity" statutes. Such statute are different from the ACA in that (1) there is no direct mandate imposed on employers (because of ERISA, they take the fom of insurance regulation requiring that insurance cover contraception) and (2) they do not prohibit cost-sharing. While it is less dirct than the ACA mandate, such laws still have the effect of forcing employers with opposition to contraception to have plans that provide for them.

The ACA mandate made those laws seem unimportant, but given the decision in Hobby Lobby, they may matter again.

Since the federal RFRA does not apply to states, in states that do not have their own version of RFRA, presumably such laws will continue to operate. Although many such statutes have exemptions for religious employers, some of those are fairly restrictive.

Thoughts from Michael Moreland and others?

Dr. Lindsay's Huff-Po and religion as an explanatory variable in religious accommodation cases

By Kevin C. Walsh

At first knowing of him only what I read in his piece, it came as something of a surprise to me to learn that the author of the Huff-Po* raising Hobby Lobby-based "concerns about the compatibility between being a Catholic and being a good citizen" has legal training. There is little legal argument and the piece describes as a "fiction" the quaint contention that the Court's application of a federal statute involved "upholding secular law." Yet Dr. Ronald Lindsay has not only a JD (from UVA), but also a PhD (from Georgetown). And he successfully practiced law for a long period of time.

Dr. Lindsay's full-time job now appears to be running an organization designed "[t]o oppose and supplant the mythological narratives of the past, and the dogmas of the present." As Dr. Lindsay has been carrying out this mission for a while, it is peculiar that he describes his loaded question ("Is it appropriate to have six Catholic justices on the Supreme Court?") as "uncomfortable." Surely this question is not uncomfortable for him. His Huff-Po is an organic outgrowth of the culture in which he lives; writing it fits in perfectly with his day job. Given Dr. Lindsay's background and knowledge, what is most uncomfortable is not his question, but his apparent uninterest in actually advancing and arguing for an explicit answer in his Huff-Po.

For whatever it's worth, as a descriptive matter, the Catholic Justices' Catholicism cannot be entirely irrelevant to how they rule. But the way in which Catholicism may or may not influence each Justice differs from person to person, and scholars of judicial behavior have generally not found it useful to use judicial religious identity as a variable in building their models. There are other, stronger influences that matter much more (like ideology).

Interestingly, Hobby Lobby may be one kind of case in which the religious identity of judges and of parties may be a useful explanatory variable, although not confirmed at the Supreme Court level. The most detailed empirical examinations of this issue that I am aware of are Greg Sisk's and Michael Heise's analyses of lower-court decisions. I believe their most recent paper (Greg can correct me if I'm wrong) is Ideology "All the Way Down"? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. 1201 (2012). That paper addresses Establishment Clause cases. An earlier paper with co-author Andrew Morriss addresses religious accommodation cases. See Gregory C. Sisk, Michael Heise, & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004). I am uncertain whether their analysis has been supplanted by later analyses, but here is a summary of their findings as of 2004:

The vitality of religious background to a more complete understanding of judicial decisionmaking is made abundantly clear by the findings of our study, at least for disputes involving the very topic of religion and the place of religion in public society. In our study, religion-based variables proved to be steady influences on judicial disposition of religious freedom claims, emerging as statistically significant across multiple models and independent of other background and political variables commonly used in empirical tests of judicial behavior. Indeed, religious affiliation variables—both those of judges and of claimants—were the most consistently significant influences on judicial votes in the religious freedom cases included in our study.

In analysis of demands by religious claimants for exemption from governmental rules or regulations under the Free Exercise Clause of the First Amendment, together with related statutory, free speech, and equal protection claims, Jewish judges and judges from Christian denominations outside of the Catholic and Mainline Protestant traditions were significantly more likely to approve of such judicially-ordered accommodations, while free exercise claimants from Catholic and Baptist backgrounds were significantly less likely to succeed in pressing such claims. In evaluating judicial resolution of challenges to governmental interaction with religion under the Establishment Clause of the First Amendment, Jewish judges were significantly more likely to conclude that governmental interaction with religion breached the figurative wall of separation between church and state. In the particular context of education, Catholic judges were significantly more likely both to respond favorably to religious claimants seeking exemption from governmental rules or regulations (that is, more approving of Free Exercise Clause objections to government controls) and to resist challenges to governmental acknowledgment of religion or interaction with religious institutions (that is, less approving of Establishment Clause claims).

Shifting from a focus upon particular types of claims to analysis of four integrated theoretical models of the Religion Clauses of the Constitution—models that we christened Pro-Religion, Anti-Political, Judicial-Restraint, and Pro- Secularist—the steady influence of religion-based variables again emerged in our study. No significant variables were found among judges who adopted an approach toward the Free Exercise and Establishment Clauses that was most approving and accommodating of religion (the Pro-Religion Model) (although Catholic affiliation for judges closely approached significance). Nor did those judges who fit the antithetical model of insisting upon secularism in public life (the Pro-Secularist Model) fall into any significant patterns (again with the near and negative exception of Catholic judges). However, Jewish judges along with judges from non-mainstream Christian backgrounds were significantly more likely to approve of judicial intervention to overturn the decisions or actions of the political branch that either refused to accommodate religious dissenters or provided an official imprimatur upon a religious practice or symbol (the Anti-Political Model). Likewise, judges from these same religious backgrounds were significantly less likely to adopt a judicial restraint approach (the Judicial-Restraint Model), that is, these judges were less likely to defer to governmental actions that severely impacted religious minorities or that officially acknowledged religious traditions.

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* A "Huff-Po" is kind of like an op-ed, but in partaking more of assertion than argument it exhibits one of the "characteristics of the larger intellectual/political culture of which the HP is an expression."

Dietrich von Hildebrand on "religious pluralism"

By Patrick McKinley Brennan

As we move forward following the Court's decision in Hobby Lobby, it's important to be clear about what we mean if we think, as many still do, that the answer to our day's social problems amounts to no more than a consensus that values pluralism. Consider, by contrast, the judgment of Dietrich von Hildebrand (1889-1977), whom Ven. Pope Pius XII described as nothing less than "a 20th century doctor of the Church" (Pope Saint John Paul II and Pope Benedict XVI had similarly admiring things to say about von Hildebrand's work as a theologian):

Insofar as cultures are concerned, multiplicity has a value, just as does the pluralism of national characters. When, however, it comes to metaphysical or ethical truth -- and especially when it comes to religion -- any pluralism is an evil. Evil, too, are the many fluctuations in the life of religion that occur in history. Unlike cultural pluralism, religious pluralism is in no way a sign of life, but rather a symptom of human fraility and insufficiency. Great metaphysical and ethical truths, and the true religion itself, are destined to take root among men. Here the 'oughtness' of assuming social reality gives to their aliveness a special significance. It represents a descending of Christ into the soul of the individual person and the erecting of His Kingdom in the interpersonal sphere. It is the dimension of Christ's victory that He predicted in saying: 'Where two or three are gathered together in my name, I am in the midst of them.' To supplant truth in its transcendent existence with a merely social reality is to imprison man and history in a desolate immanentism. On the other hand, the incarnation of transcendent truth in man and history represents the victory of transcendence over the purely immanent.

Trojan Horse in the City of God: The Catholic Crisis Explained 103-04 (1967; 1993).

John Cardinal O'Connor's Foreword to the 1993 edition of von Hildebrand's book adds the following: "It is against secularism that von Hildebrand inveighs most strongly and consistently. It is the invasion of secularism into the life of the Church that he sees as most analogous to the invasion of Troy by the Athenians. 'To be sure,' he says, 'secularization is an evil primarily because it implies an apostasy from Christ, and it is for this reason that we fight it on every page of this book'" Id. at xi. The late Cardinal O'Connor's Foreword concludes with these words about what the Church should be doing in every age: "I hope that [readers] will take special note of Dietrich von Hildebrand's quoting John Henry Cardinal Newman about the Church: 'She holds that unless She can, in Her own way, do good to souls, it is no use Her doing anything.'" Ibid.

By the way, von Hildebrand was sentenced to death (in absentia) by the Nazis for publishing a weekly opposition newspaper with the assistance of the great Austrian Chancellor Engelbert Dollfuss, who for his part was assassinated by the Nazis in 1934.

Wednesday, July 2, 2014

More Comments on Irony and Tragedy

By Thomas Berg

Marc and I are engaged in a fun (for us, at least) dialogue about the "tragic" versus "ironic" approaches to religious liberty questions and probably other legal/social disputes too. I've described the ironic approach, in the tradition of Niebuhr's The Irony of American History, as calling for humility and self-examination even in our most strenuous arguments against opponents, because our virtue can easily transmute into vice, while self-examination may make us see commonalities with, or virtue in, our opponents. Marc, in turn, has defended the tragic approach laid out in his fine book, on the ground that it takes more seriously the often-unbridgeable gulfs between beliefs and ways of life that contend with each other.

Marc also argues that the ironic approach reflects a certain pretense of "knowing," a "clever detachment" that stands in judgment over the parties embroiled in the conflict. On this last point, a friend of mine who's a student and fan of Niebuhr's work sent me some thoughts that laid out ideas I had only barely expressed in my response:

[T]he ironic disposition cannot be separated from the movement of repentance in Niebuhr's work -- that is, repentance is that movement in which the self transcends itself, its past, the causes to which it has pledged allegiance and see itself and this past and these commitments under the judgement of God. This is not clever detachment. Viewing itself and its past and its commitments under the judgment of God, it is enabled to see how virtuous intentions have gone astray as well as to discern the commonalities of sin between itself and its enemy. This emphasis on repentance is consistent throughout the two volumes of [Niebuhr's major work, The] Nature and Destiny [of Man].

Now, I'm sure that some people would be suspicous that when the self "transcends itself, its past, [and] the causes to which it has pledged allegiance," it is not actually "see[ing] itself ... under the judgment of God" but is instead asserting a kind of radical autonomy. Catholic theologians accused Niebuhr of favoring the autonomous self over the moral guidance of the Christian community. I'm definitely not an experton these things, but I tend to see that criticism of Niebuhr as overstated. However, let's set that debate aside. The relevant point, which my friend expresses better than I had, is that in calling for self-examination and humility, the "ironic" thinker applies--should apply--the same demand to himself. The kind of "ironic" disposition I'm describing, then, does not claim detachment--or intellectual or moral superiority, except insofar as moments of self-examination and repentance can lead to morally better behavior.

Along the same lines: Marc used an observation from Tom Shaffer to describe the ironic thinker's detachment and perceived superior insight. My friend restates that quote and takes the analogy in an interesting direction:

"Shaffer [Marc wrote] once described irony as 'what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.' The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining."

The self in the ironic disposition is not an observer, but one of the two young lovers, who perhaps at a later date smiles wryly at a moment of innocence that was in actuality not quite so innocent as imagined at the time. As he has since discovered that, as a young man, he was still too young to know the full meaning of loving another human being. The movement of repentance does not negate responsibility for the self's obligations. In so far as he reflects upon this past moment of innocence, he does so in order to gain a greater purchase on the meaning of love and the full meaning of loving another human being. Not to negate that obligation or to be an observer who stands outside of it.

I'm piling on with the words here (sorry Marc!), but I thought that my friend's comments were worth sharing as part of the discussion.

I wonder if "irony," in our current circumstances, bespeaks too much of Letterman or Kimmel snark. Is there a better term to refer to the disposition I've tried to describe?

Abortion: A "Jurisprudential Black Hole" Distorting the Law for Four Decades

By Greg Sisk

In the separate concurrence in McCullen v. Coakley, Justice Scalia joined by Justices Kennedy and Thomas, wrote:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

As many commentators, both here on the Mirror of Justice and elsewhere have written, the political divide on the Hobby Lobby case illustrates what Paul Horwitz calls “the collapse of a national consensus on a key element of religious liberty: accommodation.” Here too, abortion or “reproductive rights” have been central to creating that fault line between progressives and conservatives on religious liberty.

All of this can be traced back to the horrific error made in Roe v. Wade more than forty years ago.

In words parallel to the McCullen concurrence, I had this to say several years ago about Justice Blackmun’s jurisprudence:

Nor was the distorting effect of Justice Blackmun’s preoccupation with abortion and the Roe decision manifested only on the subject of the basis, definition, scope, and precedential preservation of the abortion right. As a jurisprudential black hole that drew in and deformed everything that came near its wandering path through spacetime, Roe’s gravitational pull collapsed Justice Blackmun’s approach to every area of law into a pro-abortion singularity including questions of standing to sue, standards of appellate review, and freedom of expression. Justice Blackmun decided every question on the periphery of the abortion controversy in the manner that most aggressively promoted ever-expanding abortion rights while simultaneously contracting the rights of those who protested abortion and the power of the states to restrain the abortion license.

Sadly, the reckless and destructive path of Roe v. Wade through the American legal landscape is likely to continue.

"RFRA Worked in Hobby Lobby; What's Next?"

By Thomas Berg

I have a piece on the Berkley Center's religious-freedom blog discussing Hobby Lobby's implications and the prospects for RFRAs in the future:

Finally, what will happen to RFRA and parallel religious freedom laws in 15 states? Already one hears calls for amending[*] the federal statute—although a White House source has disclaimed any interest in doing so, and the gridlocked Congress seems unlikely to act. Opponents may try to amend other federal laws to exclude RFRA from applying to them and to amend or even repeal RFRAs in blue states. Those attempts should be resisted. In an increasingly divided society, RFRAs provides a means for protecting dissenters from serious burdens while still allowing government to accomplish its important goals. The Hobby Lobby decision is controversial, but no less so than the decision to mandate contraceptive coverage in the first place. RFRA actually guided the Court toward a decision that can protect the interests of both sides. Let’s remember that in the coming months.

Other very worthwhile reads on the blog from Stanley Carlson-Thies, Kyle Duncan, Tom Farr, Jennifer Marshall, Steve Smith, and Chip Lupu and Bob Tuttle.

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[* I fixed a typo here; the blog will be corrected when it refreshes tomorrow.]

Religious Freedom, Tolerance, and the black mass

By Michael Scaperlanda

A black mass is scheduled for the Oklahoma Civic Center on September 21 sponsored by this group. Here is Archbishop Coakley's statement responding to this disturbing news. WIth the Hobby Lobby decision this week, there has been much discussion about religious freedom in the news and on this blog.

A former student asked me: should sincrere satanists be entitled to the same religious freedom and tolerance as sincere adherents to other religions? Does the fact that satanists believe in God but worship God's enemy put them in a different category than Jews, Muslims, Christians, Hindus, Buddhists, Pagans, agnostics, and atheists? Does the fact that the black mass is an explicit inversion and mockery of the Catholic Mass put it in a different and unprotected or less protected category of "worship"? Could the framers have dreamt that black masses would be held openly in our country?

Fellow blogger, how should I respond to my former student?

This is how the group describes the black mass:

The modern form of the Black Mass is still practiced by modern Devil Worshipers to celebrate the perversion of the Catholic Mass still seen in society today. The Black Mass as gone through a transformation to maintain practice within societal law. The consecrated host is corrupted by sexual fluids then it becomes the sacrifice of the mass. The blasphemy remains intact along with corruption of Catholic Mass. Modern/Laveyan Satanists see this as ritual to mock the Catholic Mass in the form of a blasphemy rite used to deprogram people from their Christian background, however Religious Satanism sees the Black Mass as a religious ceremony to empower themselves and receive a "blessing" from the Devil. The Black Mass being performed at the Okc Civic Center has been toned downed as to allow it to be performed in a public government building. The authenticity and purpose of the Black Mass will remain in tact while allowing for slight changes so that a public viewing can occur without breaking Oklahoma's laws based on nudity, public urination, and other sex acts.

Thoughts on the Law and Religion Roundtable

By Michael Moreland

As Rick noted, last week was the 5th Annual Law and Religion Roundtable, hosted this year at Washington University in St. Louis. (I join the chorus of gratitude to John Inazu and his colleagues for their gracious hospitality.)

One of the worthy purposes of the gathering is to foster a community among law and religion scholars, including (especially) among those who disagree about fraught and divisive subjects (abortion, same-sex marriage, legislative prayer, RFRA, the role of the state, and the reasonableness of religious belief, to name a few offhand). Still, I do think--as Rick already indicated--that some fault lines are developing and coming into sharper focus among those working in the area, even if such gatherings still hold the promise of civil discourse and disagreement.

The meeting last week was amid the quiet before the storm of the decision in Hobby Lobby on Monday. As Paul Horwitz notes in his NY Times essay today, the consensus in favor of religious accommodations is collapsing. I don't think we should sidestep making the obvious point that this is on account of arguments about sex (Paul highlights the debate over same-sex marriage in particular). Consider the underlying issues in much of the prior history of religious exemptions and accommodations: military service (Seeger and Welsh), mandatory school attendance (Yoder), drug use (Smith and O Centro), and sabbath observance (Sherbert). With the possible exception of the first, none rose to the level of public debate that now surround abortion, the contraceptive mandate (even if there is little public debate about the morality of contraception as such), and same-sex marriage. It was easy to talk about religious freedom and pluralism when that meant Quaker exemptions from the draft or small religious communities using hallucinogenic substances. Now that the argument over religious exemptions has moved to much more contested issues, can a consensus that values pluralism hold? Does the Rawlsian liberal embrace of pluralism, freedom of conscience, and an overlapping consensus of reasonable views depend (philosophically or historically, as a contingent matter) on a range of acceptable views that those who, say, oppose abortion, the HHS mandate, or same-sex marriage are now outside?

Another pervasive argument in "law and religion" is what one makes of the "religion" part. The "religion is not special" view has been gathering force for several years, with arguments from Schwartzman, Leiter, and Eisgruber/Sager (among others). Another way to approach the religion is not special argument is to frame it as an internal/external distinction. For some of us, we think (I dare to say “reason”) about religion from an internal view, within a specific religious tradition and set of commitments (which does not entail, I hope, an inability to engage those from outside that tradition). And some are sympathetic to religious claims even if not adherents themselves, just as one can be sympathetic to claims for free speech by those with whom one disagrees. The alternative “external” view proceeds, by definition, outside of (unsympathetically toward) a tradition and regards religion as another commitment people happen to have (for the kind of people into that sort of thing), albeit one that is irrational, socially disruptive, and historically a source of bloodshed and oppression. As John Finnis puts it in this passage:

If religion is...just one among the deep passions and commitments that move people, it does not deserve constitutional mention on account of any special dignity or value, and if its mention in constitutions is defensible at all, the defense must be back-handed: religious people have been so beastly to each other that historical constitution-makers have not necessarily been unreasonable in treating the religious as specially vulnerable to discrimination. But the hypothesis – that religion is just one deep and passionate commitment amongst others – is, of course, lethal to religion. It is an absolutely external view, which treats religious propositions as if they were inherently incapable of conveying any understanding of or rational response to any feature of reality. They treat religion in the way that Ronald Dworkin regularly treats views of legislators or “majorities” with which he is unsympathetic, that is, not as propositions about rights, or common good, or as any other proposition or premise justifying a normative conclusion, but instead as mere expressions of distaste or disapproval, accompanied by an appeal to the power of those who hold these views – their power as a majority to give effect to their attitude, their passionate commitment. John Finnis, "Why Religious Liberty is a Special, Important and Limited Right" (2008).

Exploring “mere expressions of distaste or disapproval accompanied by an appeal to the power of those [such as justices on the Supreme Court] who hold these views” would be a jejune research agenda for any academic field to embrace. I hope future gatherings of law and religion scholars can continue to think anew about ways of contributing to the field (and shaping the legal culture and civil society) without avoiding difficult conversations about our differences.

Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez

By Rick Garnett

Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”

But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez. In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices. Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not? In Martinez, it seemed to some of us that the "Court shut this key difference from sight."

For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.