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.

Thursday, November 6, 2014

Religious Accommodation in the Welfare State: Establishment Clause Issues

(from Tom Berg) Increasingly, opponents of religious-freedom exemptions or accommodations  have focused on the argument that it's impermissible to exempt religious conduct when it causes anything that the government has defined as a legal harm to others. And increasingly opponents  argue that such exemptions are not only inappropriate to mandate under a religious-freedom provision, but are actually unconstitutional even when the legislature itself adopted the exemption. A prime example is Fred Gedicks' and Rebecca Van Tassell's argument that ruling for employers in the contraceptive-mandate cases would violate the Establishment Clause if it meant the employees lost their legal claim to contraception coverage that the HHS regulation gave them (even if the government could provide access some other way).

The premise of this argument is that, as Gedicks and Van Tassell put it, “permissive accommodations that require unbelievers and nonadherents to bear the costs of someone else’s religious practices constitute a classic Establishment Clause violation.” They analogize it to the "classic" 18th-century cases of tax support for the favored church and disabilities on dissenters.

I agree that effects on others may be a good reason to deny a religious exemption. But I think that when the legislature has reasonably determined an exemption is warranted, to impose strict Establishment Clause limits preventing such exemptions is misguided: it rests on weak theoretical premises and an inapt historical analogy. In my new article on religious accommodation in the welfare state (full text here), I develop this argument. An excerpt:

But those [classic] establishments pressured dissenters to attend the favored church and required them to pay taxes for its support. Such requirements differ from regulatory exemptions in the very ways that are at issue. Compulsion to attend a church is indeed compulsion to engage in a religious practice, something that no regulatory exemption requires. Required tax support for the favored religion removes no legal burden on that faith and thus serves no free exercise interest. Accommodations from regulation serve those interests. To cite forced worship or tax support as the analogies that condemn accommodations is to beg the very questions at issue.

 

A more pertinent historical case for religious exemptions is the original “benefit of clergy,” the arrangement by which clerics in the medieval church were free from civil jurisdiction—triable and punishable only in church courts—for any felonies they committed. King Henry II’s attempt to constrict this privilege and prosecute “criminous clerks” in royal courts for rapes, murders, and thefts lay at the core of his confrontation with Archbishop Thomas Becket from 1163–1170. Unlike compelled worship or tax support, benefit of clergy actually involved the feature relevant to accommodations: exemption of religious actors from secular regulation when they had caused harm to others....

 

But rejecting benefit of clergy as an incident of establishment does not mean rejecting most modern accommodations, for there are multiple differences between the two. First, benefit of clergy was for the favored church (in medieval Europe, the Catholic Church). Second, it shielded wrongdoers from state jurisdiction even when there was no particularized conflict between the law in question and the demands of faith....

 

Finally, benefit of clergy allowed serious, direct harms to the person and property of other individuals: murder, rape, theft. No one argues today that religious freedom blocks the government from acting against such basic harms. The issues concern laws that reflect the far more extensive aims of the post-New Deal state. Thus, any analogy to benefit of clergy merely returns to the question to what extent religious accommodation sets limits on the regulatory-welfare state when it affects the countervailing interest in free exercise of religion. Again, the proper balance between these two means recognizing government’s expanded power—but not simply deferring to whatever the government defines or asserts as a harm.

Tom B.

The election and education reform

The Thomas Fordham Institute has a long post by Michael Petrilli on the implications of Tuesday's elections for educational reform and school choice.  These are implications that all those who embrace the Church's social teachings should welcome (whether or not they welcome all or many of the other possible implications of those elections).  A bit:

With a few exceptions, most of the races decided yesterday didn’t hinge on education reform. But the outcome will have big implications for education policy nonetheless. . . .

So here we are again, with Republicans winning stunning victories in races for governor’s mansions and statehouses nationwide. And once again this will be good for education reform, especially reforms of the school-choice variety. Voucher and tax-credit programs in Wisconsin, Florida, and Arizona will continue apace; charter caps may be lifted and bad laws amended in Massachusetts, Maryland, and Illinois; comprehensive reform efforts in New Mexico, Nevada, and Michigan have a new lease on life.

There’s good news for reformers on the Democratic side of the aisle too, what with the teachers unions’ terrible, horrible, no good, very bad day signaling their waning influence. Of particular note is Rhode Island—Rhode Island!—which just elected a pro-education reform, pro-pension reform Democrat as governor and a bona fide charter school hero as lieutenant governor. All while voters in Providence rejected a union-backed convicted felon in favor of a charter supporter. Remarkable!

Camosy on "The abortion politics of 2014 and beyond"

At Catholic Moral Theology, Charlie Camosy has an election-analysis post on the "abortion politics of 2014 and beyond" that is worth reading and thinking about.   Mirror of Justice is not a merely political blog, but I don't think it's out of line to report my happiness about the fact that Wendy Davis, Mark Udall, and Kay Hagen's extreme views on abortion were rejected.   And, I agree with Charlie about the abortion related "lessons" that we can take away from Tuesday's election, including the lesson that "personhood amendments" are probably not likely to be a successful or productive strategy.  It is true that these amendments' meaning and effects are often badly misrepresented by critics and this fact almost certainly helps to explain why they fail even in pro-life states.  But, the fact is, they do fail, and it is better for the pro-life movement (it seems to me) to focus on the many kinds of measures that, increasingly, are succeeding.

Wednesday, November 5, 2014

Living on a Blue Island

Blueisland

I’ve thought that the best forecast for elections tends to be Matthew Dowd’s prediction that both the winning and the losing parties will misread the lessons of that election.  You will be the judge of whether the following stumbles and falls against that caution.

For months, I have been skeptical (but as a Republican, hopeful) that the Republicans would be able to climb the high hill of taking over six Democratic seats to obtain a majority in the United States Senate in 2014.  I thought it probable that Republicans would fall a seat or two short.  If that had happened, I expected that the meme of today would be that Republicans had badly lost by missing that six-vote switch, ignoring what would be the rather respectable achievement of picking up four or five Senate seats.

As a recent example of such mis-reading of election results, a false mantra had taken hold about President Obama’s supposedly big victory in 2012.  Just a few days ago, in noting how much the landscape had changed in the Republican direction, the New York Times remarked that President Obama had won re-election just two years ago by a “commanding margin.”  Only in the world of news spin can an incumbent president winning re-election by 51 percent of the vote—near the low point for presidential re-elections in American history—be characterized as a “commanding margin.”

I was too cautious about Republican prospects—obviously.  And thus far, I have been pleasantly mistaken about the general acceptance of the meaning of those election results.  Last night saw a higher Republican wave than nearly anyone had anticipated, most definitely including me.  And no one seems to be missing the message (other than, perhaps, the Obama White House).

Republicans were remarkably sober in victory, suggesting they might be learning something.  Republican winners appear to recognize that they are on probation, that the public doesn’t much like either party these days, and thus Republican winners now are expected to perform.  On the other side, with some exceptions, both the media and most Democrats recognize that the mid-term election was a resounding vote of no confidence in the Obama Administration.

An election that had merely produced a Republican majority in the Senate would have been (with much justification) dismissed as a product of an unusually favorable map for Republicans, given that so many close Senate contests were being waged this year in states that President Obama lost in 2012.  But that narrative would be sharply at odds with the electoral reality that ultimately emerged last night.  The biggest stories of the night came in purple and even blue states, with Republican Senate victories in Iowa, Colorado, and North Carolina (and pulling even in Virginia), as well as new Republican Governors in Massachusetts, Maryland, and Illinois.

Not here in Minnesota.  Democratic Senator Al Franken and Democratic Governor Mark Dayton were both re-elected.  Beginning in January, Minnesota will be an island of blue surrounded by Midwest states with Republican Governors.  At the gubernatorial level, North Dakota, South Dakota, Nebraska, Iowa, Wisconsin, Illinois, Michigan, Indiana, and Ohio have all turned red.

The Republican wave did wash up in Minnesota, though not too far up the shore.  Governor Dayton was expected to win re-election handily, but instead barely cracked 50 percent and finished only five points ahead of an under-funded and largely ignored Republican opponent.  And Republicans defeated 11 Democratic-Farmer-Labor Party incumbents to retake control of the state house of representatives.  Still, the DFL won all state-wide contests and holds the state senate.

Now the states are said to be the laboratories of democracy.  While reform Republican governors are now taking charge in all of the neighboring Midwest states, Minnesota’s Democratic governor will continue to be a staid and old-fashioned creature of government.  He tends to see the answer to every problem as more government, assume that every conflict is one in which government falls on the side of the more vulnerable, and zealously uphold the interests of government employee unions.

As but one example of democratic experiments, it will be interesting to see what happens throughout the Midwest in the area of education.  Midwest states have long prided themselves on being among the best in the country in education.  Those who graduate from high school, and also avoid a criminal record or becoming a parent while still a teenager, are unlikely to ever to live in poverty.

Catholics have long recognized that education offers the greatest hope for transforming lives and lifting people out of poverty. And as Catholics with a holistic view of the human person, we know that education opens up human potential, allows people to thrive in cultural richness as well as economic satisfaction, and helps us better understand the world around us and thereby better understand God.

And yet that educational promise is not being kept for all, especially for poor children in minority communities. Despite the pretenses of federal officials and the political advertisements of candidates for President and Congress, the states remain the center of education, and thus state governments are where the action on education will continue to be centered.  And there is much work to do.

Minnesota has one of the greatest disparities in educational achievement between black and white children in the country.  Four years of a Democratic governor—and two years of solid Democratic control of the entire state government—have done nothing to reduce that disparity.  Indeed, those of us who are critical of the DFL agenda in Minnesota would argue that a state administration tightly connected to the teachers’ union has squandered opportunities to move in a positive direction.

Governor Dayton repeatedly announced in his campaign commercials during this cycle that he “cared about education.”  I have no doubt that he does.  But so does everyone else.  That hardly makes him distinctive.  What matters in how one expresses that concern.  Unfortunately, whenever there is a difficult choice between the interests of the teachers’ union and the interests of kids, Governor Dayton can be counted on to side with the teachers’ union.

When the state legislature voted to allow school districts to consider teacher quality (here), rather than merely seniority, when forced to lay-off teachers, Governor Dayton vetoed it (here).  He ignored reams of empirical studies showing that teacher excellence, which is most definitely measurable, has a powerful correlation with outcomes for students, especially those most at risk.  But Governor Dayton chose instead to stand with the teachers’ union in favor of rigid and archaic tenure rules.

Governor Dayton then used the line-item veto to deny continued funding to the innovative Teach for America program, which places non-traditional college-educated people—who don’t have a regular teaching certificate—into over-stressed public schools and for subjects on which qualified teachers are desperately wanting (here).  Once again, Governor Dayton chose the interests of the teachers’ union, which wants to control the pipeline into the teaching profession.  Indeed, when the Teach for America program persevered despite the loss of Minnesota state funding, Governor Dayton’s union-mentality appointees to the state Board of Teaching tried to block those teachers from the classroom (here), later back-tracking under pressure.

One of my colleagues, Professor Nekima Levy-Pounds, points to the stark and indefensible fact that public schools in Minneapolis with a majority of minority-race students are offered teachers with considerably less experience and advanced training than are public schools in the city with white majorities (here).  In an elementary school in Minneapolis that is nearly 90 percent white, for example, more than 90 percent of the teachers have ten years experience or more.  By contrast, at two elementary schools with more than 88 percent black students, about a third of the teachers have been teaching for less than three years.

A reform of teacher assignment rules in Minneapolis is plainly indicated.  But the forces of the status quo may prove stubborn in resisting such reform.

Governor Dayton’s fealty to the teachers’ union seems likely to stymie educational reforms in Minnesota, at least those beyond throwing taxpayer dollars at his allies in the educational establishment.  As a consequence, Minnesotans will likely be outside observers in our region of the country when it comes to meaningful educational reform.  As educational innovations take hold in the surrounding states with reform-minded Republican governors—some of which may work, others which prove unsuccessful—Minnesota is likely to adhere to the status quo.

I suppose that’s part of the democratic laboratory as well.  Minnesota is left to serve as the control group in comparison with our innovative neighbors.  But that’s little solace to those who are left behind.

Democrats for Life Statement on the Election

(from Tom Berg) "Pro-Life Democrats to Democratic Leadership: You Cannot Win When you Alienate 21 Million People [pro-life Democrats] in your Base."

The release includes a chart showing that the number of pro-choice Democratic members in the House is roughly the same now as in 1980.  The Democrats' loss of power in the House has correlated with the loss of pro-life members (and voters).

Yes, I know, this has been said many times before and the Democratic Party has ignored it.  As Kristen Day, DFLA's executive director, says in this post-election analysis: "I feel like we are in a time warp."

Remember, Remember . . .

(Reposting something I posted last year . . .):

When I was in first grade, my public school celebrated Guy Fawkes Day.  It did not strike me as strange at the time, though it certainly does now.  (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.)  Should it?  Would a public school's celebration of Guy Fawkes Day communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community?  Certainly, that was long the celebration's purpose.  General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:

As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.

In any event, instead of burning Fawkes, or waxing rhapsodic about how liberty, individualism, and all that is good were saved when the Plot was thwarted, maybe we should read a little Eamon Duffy, and think about what England once was.

Call for Abstracts: "Law, Religion, and American Health Care"

Here is a call for abstracts for a Harvard Law School conference (abstracts due Dec. 1, 2014):

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2015 annual conference, this year entitled: “Law, Religion, and American Health Care.”

Conference Description

Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated.  Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.  

This conference, and anticipated edited volume, will aim to: (1) identify the various ways in which law intersects with religion and health care in the United States; (2) understand the role of law in creating or mediating conflict between religion and health care; and (3) explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

Tuesday, November 4, 2014

Religious Accommodation in the Welfare State: Hobby Lobby and For-Profit Exemptions

I'm summarizing two or three points of my draft article on "Religious Accommodation in the Welfare State" in separate posts, because they cover a bit of a spectrum. One argument is that although Hobby Lobby firmly establishes that commercial businesses have religious freedom rights, its results for exemption claims by businesses will be "far [from] radical":

As already discussed, the Court in Hobby Lobby held firmly that for-profit closely held corporations can assert religious freedom claims. That holding was correct because people should be able to carry their faith and conscience into their businesses, even when they incorporate, and because RFRA should be interpreted vigorously to take seriously people’s ability to follow their faith in all aspects of life.

At the same time, the holding of Hobby Lobby is also limited. After firmly establishing that the closely held companies could sue, the majority proceeded cautiously in assessing whether the mandate served a compelling governmental interest by the least restrictive means.

One conclusion from this, I explain in some detail, is that--contrary to the claims of some accommodation opponents--Hobby Lobby does not create a slippery slope in which enactment or recognition of any religious freedom exemption will lead to a flood of commercial-business claims:

Hobby Lobby should not deter decision makers from recognizing accommodations for religiously affiliated non-profits for fear that this will automatically trigger identical exemptions under RFRA for for-profit businesses. Such fears may have contributed to the decision by several civil rights groups, immediately after Hobby Lobby, to withdraw support for the federal gay-rights employment bill on the ground that it contained an exemption for religious organizations.[1] But the fact that Hobby Lobby extended the non-profit contraception accommodation to for-profits does not mean that the same thing will happen in other contexts—certainly not that it will happen willy-nilly.


[1] See Joint Statement on Withdrawal of Support for ENDA and Call for Equal Workplace Protections for Gay People (July 8, 2014),  (giving as one reason for withdrawal that “opponents of LGBT equality are already misreading [Hobby Lobby] as having broadly endorsed rights to discriminate.”). See also Thomas Reese, What’s Next in the Ongoing Struggle Between the Bishops and Obama?, Nat’l Cath. Rptr., July 25, 2014 (“Ironically, the Hobby Lobby decision discouraged compromise because the gay community feared that any exemption for religious nonprofits might be expanded to for-profit corporations by the courts. This, after all, is what happened in the Hobby Lobby case.”).

"Just Money: How Catholic Social Teaching Can Redeem Capitalism"

This report, published by Theos (a "religion and society think tank") and written by Clifford Longley, will be of interest to many MOJ readers.  

The claim, from the Executive Summary, is that "neoliberalism" -- or "market fundamentalism" is a "false ideology that has to be confronted, in the name of sound economics and of humanity itself."  I am, I admit, skeptical that what the document calls "unchecked market fundamentalism" actually exists in laws or practice so I'm not sure how pressing the need actually is to confront it.  The paper seems (after an admittedly quick skim) to overstate some of its criticisms and to set up for demolition some familiar straw men ("Randians!").  That said, I also encountered some really nice statements about the Church's social teaching, the common good, human flourishing, subsidiarity and solidarity, etc. -- all matters that should be a part of discussions (it seems to me) about how to better order and regulate economic activity and affairs.  So . . . see what you think! 

Krason on the "Crisis of Religious Liberty"

Prof. Stephen Krason has edited a soon-to-be-released volume, The Crisis of Religious Liberty:  Reflections from Law, History, and Catholic Social Thought.  (HT:  Center for Law and Religion Forum).   Here's the blurb:

In “The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought,” contributors consider a series of significant challenges to the freedom of religious conscience and expression in the United States today. Such challenges include the mandate from the U.S. Department of Health and Human Services concerning contraceptive, sterilization, and abortifacient coverage in health insurance plans; the question of health-care institutions requiring medical personnel to participate in morally objectionable procedures contrary to their religious beliefs; legal liability for individuals and businesses refusing on religious grounds to provide services for same-sex marriages; the prohibition on students from engaging in religious expression in public schools; the use of zoning laws to block Bible studies in private homes; and a variety of other issues that have surfaced in recent years with respect to religious freedom. While some argues that religious liberty extends no further than the freedom to worship, contributors suggest otherwise, noting that the exercise of religious liberty is greater than a highly restrictive definition of the notion of worship. 

The Crisis of Religious Liberty comprises eight chapters and an afterword that explore the nature and basis of religious freedom in terms of Catholic social thought. They cover such topics as the Catholic Church’s teachings from the Vatican II’s Dignatis Humanae (Declaration on Religious Liberty), the decline of a historic rapprochement among different religious perspectives in the United States in the face of an increasingly aggressive secularism, perspectives on religious liberty from the founding of America, and how the religious liberty situation in the U.S. compares with the rest of the world.

Something for your Winter Holidays wish lists!