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.

Friday, May 8, 2015

Legal Protections for Religion in the Health Care Context

The Petrie-Flom Conference on Law, Religion and Medicine opened this morning with a plenary address by Doug Laycock, who suggested that the Supreme Court's decision in Hobby Lobby has been greatly exaggerated by both the winners and the losers.  He views the decision as a narrow one, given its basis on the fact that the government already had established a means to address providing contraception to employers of religious organizations and also suggested that the extension of RFRA to businesses did nothing new. (Among other things, he discussed the debates surrounding the failed Nadler amendment to RFFA, which suggested all sides thought businesses were covered.)

Following the plenary address, the first panel was titled Opening the Conversation: Testing the Scope of Legal Protections for Religions in the Health Care Context and featured papers by Leslie Griffin and Sam Levine.

Griffin believes that medicine and religion have different goals and that too much of medicine today is based on religion rather than health, identifying as problems in her view the growth of conscience clauses, what she calls an exemption regime, and the substantive content of much of health law.  Her claim is that the discussions we have would be different if our starting point was health and medicine rather than religion.  What exactly that means and how the discussions would be different was not apparent to me from her talk.

Levine's talk addressed the Supreme Court's "hands-off" approach to religion, suggesting that there are four related by conceptually distinct forms of inquiry.  First, the sincerity of religious claim.  Courts do have authority and obligation to evaluate whether an individual is sincerely asserting its religious claim.  While difficult at times to assess, one cannot clam a religious right absent sincerity of the religious claim.  Second, is the metaphysical truth of religious claim.  This is where courts have and should take a hands off approach. Third, as a corollary, courts have likewise refused to consider consistency or accuracy of claim.  Courts should not look at the views or co-religionists or even the consistency of the claimant's actions.  Fourth, review of the law;s effect on religions.  Courts do evaluate that and RFRA requires it.  What Levine thinks is less clear is whether the court has to defer to the religious adherent's claim of the extent to which the law burdens religion.  

"Silence" is coming . . .

Here's an update on the Scorcese production of Endo's "Silence" one of my -- HT Michael Perry! -- favorite novels.  

Rights and Accommodations

Thanks to Susan for blogging about the conference she is attending. I'm sure it will be a very interesting and diverse set of presentations.

I did have one question about what Susan reported as one of EJ Dionne's "provocations." It's the one wherein Dionne distinguishes between "rights" and "accommodations" and "what we are trying to do in a pluralist society, i.e. find ways to accommodate conflicting interests," without "constitutionaliz[ing]" them.

I assume that the focus of the program Susan attends is on the sorts of questions that tend to fall into the "free exercise of religion" basket. And I quite agree that it would be nice not to have to constitutionalize so much, to have so many "rights." It would be far more socially attractive voluntarily to undertake a few more self-imposed burdens of civic tolerance. Unfortunately, that battle has been lost for quite some time with respect to the Establishment Clause, beginning circa 1947 and continuing right on through the 20th century, so much so that many commentators just think of the Court's current, heavily constitutionalized Establishment Clause as the perennial state of affairs. Yet it would be unfortunate in a discussion about "rights" and "accommodations" to lose sight of the other side of the religion clause coin. Perhaps free exercise is simply catching up.

Thursday, May 7, 2015

What is Caesar's and What is God's?

The 2015 Harvard Petrie Flom Center's Annual Conference on Law, Religion, and Health and America kicked off this evening with a pre-conference program titled After Hobby Lobby; What is Caesar's, What is God's?.  The panelists for the program were E.J. Dionne of the Washington Post, Diane Moore, of the Harvard Divinity School, Professor Charles Fried from Harvard Law School and Frank Wolf, a retired member of the U.S. House of Representatives.

E.J. Dionne kicked things off with what he described as several provocations.  The first was his concern with what he termed the inflated scare language in the religious liberty debate, that is language the conflates challenges to religious liberty with religious persecution suffered by people in the world who are being killed for their faith.  In his words, having to bake a cake or provide flowers does not have the same urgency as being beheaded for one's faith.  His fear is that our religious liberty arguments are becoming so shrill that we forget that there are forms of persecution in the world that are more severe.  (This is a concern that resonates with me; see my Gianella lecture at Villanova last year, which you can read here.)

His second provocation was that we need to think  more about the distinction between religious accommodation and religious rights.  His concern is that there may be occasions when introducing rights language early on in the debate misses what are trying to do in a pluralist society, i.e, find ways to accommodate conflicting interests.  There may be reason to accommodate the interests of religious groups because of their social contributions or other reasons even if one does not believe they have a constitutional right to such protection.  His worry is that we may too quickly constitutionalize these questions rather than engage in what should be a  political conversation.

He went on in his remarks to talks more specifically about Hobby Lobby, which was also the focus of several of the other speakers.  I found Charles Fried's discussion of the evolution of the Supreme Court's jurisprudence on what we understand the religion clause to protect to be particularly interesting (and if I wasn't so tired I might more about that).  

The next two days promise to be an interesting array of papers and I will post more tomorrow.

 

Epstein on Fathers and "Parenting"

Interesting and usefully contrarian observations from the essayist Joseph Epstein about the relationship of fathers and children in past, "pre-psychological" generations and how psychological-age fatherhood (following in the train of its female counterpart) now is involved in a rather culturally specific activity or project of "parenting." Not all of what Epstein describes as long-lost is to be regretted. But this bit was stimulating:

I have a suspicion that this cultural change began with the entrée into the language of the word parenting. I don’t know the exact year that the word parenting came into vogue, but my guess is that it arrived around the same time as the new full-court press, boots-on-the-ground-with-heavy-air-support notion of being a parent. To be a parent is a role; parenting implies a job. It is one thing to be a parent, quite another to parent. “Parenting (or child rearing) is the process of promoting and supporting the physical, emotional, social, and intellectual development of a child from infancy to adulthood. Parenting refers to the aspects of raising a child aside from the biological relationship,” according to the opening sentence of the Wikipedia entry on the subjectRead further down and you will find dreary paragraphs on “parenting styles,” “parenting tools,” “parenting across the lifespan,” and more, alas, altogether too much more.

Under the regime of parenting, raising children became a top priority, an occupation before which all else must yield. The status of children inflated greatly. Much forethought went into giving children those piss-elegant names still turning up everywhere: all those Brandys and Brandons and Bradys; Hunters, Taylors, and Tylers; Coopers, Porters, and Madisons; Britannys, Tiffanys, and Kimberlys; and the rest. Deep thought, long-term plans, and much energy goes into seeing to it that they get into the right colleges. (“Tufts somehow feels right for Ashley, Oberlin for Belmont.”) What happens when they don’t get into the right college, when they in effect fail to repay all the devout attention and care lavished upon them, is another, sadder story.

I began by talking about “fashions” in fatherhood, but I wonder if fashions is the right word. I wonder whether cultural imperatives doesn’t cover the case more precisely....

The culture of the current day calls for fathers to put in quite as much time with their children as mothers once did. In part this is owing to the fact that more and more women with children either need or want to work, and in part because, somehow, it only seems fair. Today if a father does not attend the games of his children, he is delinquent. If a father fails to take a strong hand in his children’s education, he is deficient. If a father does not do all in his power to build up his children’s self-esteem—“Good job, Ian”—he is damnable. If a father does not regularly hug and kiss his children and end all phone calls with “love ya,” he is a monster. These are the dictates of the culture on—shall we call it?—“fathering” in our day, and it is not easy to go up against them; as an active grandparent, I, at least, did not find it easy.

Cultural shifts do not arrive without reason. Kids today, it is with some justice argued, cannot, owing to crime in all big cities, be left alone. They need to be more carefully protected than when I, or even my sons, were children. Getting into decent colleges and secondary and primary schools and, yes, even preschools is not the automatic business it once was. The competition for what is felt to be the best in this realm is furious; thought (and often serious sums of money) must go into it. Children are deemed more vulnerable than was once believed. How else to explain all those learning disabilities, attention deficits, and other confidence-shattering psychological conditions that seem to turn up with such regularity and in such abundance? The world generally has become a more frightening place, and any father with the least conscience will interpose himself between it and his children for as long as possible. One can no longer be merely a parent; one must be—up and at ’em— relentlessly parenting.

As a university teacher I have encountered students brought up under this new, full-time attention regimen. On occasion, I have been amused by the unearned confidence of some of these kids. Part of me—the part Flip Wilson’s debbil controls— used to yearn to let the air out of their self-esteem. How many wretchedly executed student papers have I read, at the bottom of which I wished to write, “F. Too much love in the home.”

Will all the attention now showered on the current generation of children make them smarter, more secure, finer, and nobler human beings? That remains, as the journalists used to say about the outcomes of Latin American revolutions, to be seen. Have the obligations of fathering made men’s lives richer, or have they instead loaded men down with a feeling of hopeless inadequacy, for no man can hope to be the ideal father required in our day? How many men, one wonders, after a weekend of heavily programmed, rigidly regimented fun fathering with the kids, can’t wait to return to the simpler but genuine pleasures of work? Only when the cultural imperative of parenting changes yet again are we likely to know.

Grandstanding

If I were a legislator (which would never happen, because I would never be elected to anything -- though I was in fact elected class president many times back in the day), I would never vote in favor of killing people as punishment.  But the Catholic prelates who like to oppose the death penalty have not made the case, at least not that I've seen, that death is *never* proportionate punishment.  The argument about "self-defense" is a separate matter, even if the Catechism confuses the two.  It's easy to grandstand against capital punishment, but it's difficult, at best, to show that Catholic moral theology condemns capital punishment per se.

Wednesday, May 6, 2015

"Virginia Bishops call for radical shift in Commonwealth's death penalty debate"

Bishop Francis X. DiLorenzo (Richmond) and Bishop Paul S. Loverde (Alexandria) have issued a statement seeking to shift away from discussing methods of execution in Virginia to discussing the end of executions in Virginia. 

" [I]n Virginia and elsewhere," they write, "we are having the wrong debate. We should no longer debate which inmates we execute or how we execute them. Instead, we should debate this: If all human lives are sacred and if a civilized society such as ours can seek redress and protect itself by means other than taking a human life, why are we continuing to execute people?"

I agree that there is something missing from a debate that focuses on means to the exclusion of ends. But rather than abandon the debate on means, I incline more towards a both/and approach that debates both ends and means. Because lethal injection cannot be carried out properly, we should not be using lethal injection on anyone ... which leads to the question why we should be trying so hard to execute anyone at all.

Because the best way to enter the debate the bishops seek to have on capital punishment itself may be first to _win_ the debate on lethal injection as a means, the method-of-execution debate remains one worth having.

Assisted Suicide Laws

There has been a lot of quiet activity around the country around assisted suicide legislation.  In Minnesota this past year, the "Minnesota Compassionate Care Act" was introduced (SF 1880) and given its first hearing in a committee; it is supposed to be the subject of "listening sessions" around the state over the summer.  Similar legislation is being considered (and mostly rejected, so far) in many other states.  Here's a helpful roundup of initiatives (complete with color-coded map) from "Death with Dignity National Center." 

For a vivid description of some of the legislative tactics involved in past attempts to pass such legislation (California in 1999), see this Weekly Standard account of the reaction to an opposition coalition composed of "Disability-rights activists in wheel-chairs marched in solidarity with white medical professionals, alongside African-American clergy and advocates for the poor, next to Latino migrant farm workers and Catholics praying the rosary."

This Monday, a trial began in Dakota County, MN, on charges against Final Exit Network Inc, a Georgia nonprofit that provides assistance to people wanting to commit suicide, and its medical director.  According to this newspaper story about the trial:

When an applicant meets the Final Exit Network’s criteria — which includes being mentally competent and suffering from “intolerable medical circumstances” like cancer or Lou Gehrig’s disease — the network assigns volunteer “Exit Guides” who provide information on ending one’s own life.

The network’s preferred method is helium asphyxiation using a plastic bag as a mask. Often, two Final Exit Network members are present and remove items the person used to take their life.

The article also reports that, so far, attempts to prosecute Final Exit Network activists in Georgia and Arizona have failed;  their director's medical license was revoked in Maryland last year, for allegedly assisting in six suicides. 

If you need any inspiration for speaking up against laws that would legalize the work of groups like Final Exit Network, take a look at this testimony by Stephen Mendelsohn in opposition to the Connecticut bill, and this page from my favorite disability activitist group, Not Dead Yet.  I love the beginning of Mendelsohn's testimony:

Movements are known by their mottoes.  The civil rights movement sang "We Shall Overcome."  In the disability community, we have our own motto: "Nothing About Us Without Us."  We.  Us.  Interdependence.  Community.

The "right-to-die" movement, led by Compassion & Choices, has its motto.  It can be seen on their green stickers, multiple Facebook pages, billboards  and earlier this year in the Connecticut Capitol concourse: "My Life. My Death. My Choice."  Me.  Myself. I.  The difference is revealing.

Tuesday, May 5, 2015

Do Hobby Lobby skeptics have a problem with what Chinese authorities in the Xinjiang region are doing to weaken Islam?

It is being reported that "Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in 'eye-catching displays,' in an attempt to undermine Islam’s hold on local residents."

Taking as given the reported governmental purpose, this government action in the United States would not only violate RFRA (if engaged in by the federal government) but also the First Amendment (if engaged in by any governmental actor). Yet Hobby Lobby skeptics seem committed to the idea that for-profit entities cannot engage in a (statutorily or constitutionally) protected exercise of religion.

Surely a story like this one would cause them to rethink their legal analysis, right?

"All tolerance ends here"

Whenever I have occasion to size up the worthiness of particular examples of professional advocacy for "healing" in a "polarized" Church (e.g., here), I have to ask what the advocates do and what they advocate (if only implicitly) with respect to the Traditional Latin Mass.  Many lovers of "unity" love little more than to vilify Catholics who are devoted to the Mass as it was celebrated until its reform by committee in the 1960s.  The tolerance necessary for unity often runs out when it comes to how Catholics prayed until they were forced to stop praying that way, as Cardinal Ratzinger saw:

For fostering a true consciousness in liturgical matters, it is also important that the proscription against the form of  liturgy in valid use up to 1970 should be lifted. Anyone who nowadays advocates the continuing existence of this liturgy or takes part in it is treated like a leper; all tolerance ends here. There has never been anything like this in history; in doing this we are despising and proscribing the Church's whole past. How can one trust her at present if things are that way?  [Ratzinger, Spirit of the Liturgy (2000)].

Opponents of polarization in the Church should ask themselves if they are living in the spirit of openness required by Pope Benedict XVI almost eight years ago in the motu proprio Summorum Pontificum.  The current Roman Pontiff's derision of those devoted to the traditional liturgy is too well-documented to need demonstration here, and so the following paragraph from Pope Benedict's remarkable letter accompanying Summorum is more timely than ever for those of us who would seek unity in the Church: 

I now come to the positive reason which motivated my decision to issue this Motu Proprio updating that of 1988. It is a matter of coming to an interior reconciliation in the heart of the Church. Looking back over the past, to the divisions which in the course of the centuries have rent the Body of Christ, one continually has the impression that, at critical moments when divisions were coming about, not enough was done by the Church’s leaders to maintain or regain reconciliation and unity. One has the impression that omissions on the part of the Church have had their share of blame for the fact that these divisions were able to harden.  This glance at the past imposes an obligation on us today: to make every effort to enable for all those who truly desire unity to remain in that unity or to attain it anew.  I think of a sentence in the Second Letter to the Corinthians, where Paul writes: “Our mouth is open to you, Corinthians; our heart is wide.  You are not restricted by us, but you are restricted in your own affections.  In return … widen your hearts also!” (2 Cor 6:11-13).  Paul was certainly speaking in another context, but his exhortation can and must touch us too, precisely on this subject.  Let us generously open our hearts and make room for everything that the faith itself allows.