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.

Sunday, June 17, 2012

Catholic Health Association Calls for Broader Contraception-Mandate Exemption

In its 6-15 comments to HHS (see link on this page), CHA has now rejected the "two-tier" accommodation that the Obama administration proposed.  CHA calls for an approach in which religious social services/healthcare providers etc. are fully exempted along with houses of worship--which avoids the bad precedent of putting the extremely narrow HHS "religious employer" language into federal law--and if the government wants to provide contraceptive access to these organizations' employees, it does so through a means entirely unconnected to the organizations or the employees' insurance policies.

The reactions have already started claiming (of course) that the CHA has "caved" to the bishops, whereas before (of course) it "caved" to the administration.  As I've followed the whole debate over the Affordable Care Act and the contraception mandate, in my judgment Sr. Carol Keehan and the CHA deserve much respect for trying to pursue a course of supporting healthcare access, supporting effective conscience accommodations, and engaging constructively with the administration.  It gives CHA extra credibility when it tells the administration that on this issue their position is still wrong.  (UPDATE: See also Michael Sean Winters' powerful post on CHA's stand and its moral authority.) 

Wednesday, June 13, 2012

North Dakota Religious-Liberty Amendment Fails

The North Dakota proposed constitutional amendment that would have adopted the "burden/compelling interest" for religious-liberty claims failed yesterday by a wide margin.  See previous posts for commentary supporting the amendment by me along with others.  I hope the message here is that North Dakotans didn't see enough immediate threats to religious freedom from state and local laws in their relatively "high religious observance" state.  They may also have been convinced that this proposed amendment went somewhat further than the statutes and constitutional doctrines in other states in allowing religion to claim exemption from generally applicable laws (for example, the triggering burden did not need to be "substantial").  I don't think the differences would have had much effect in the application of a test that courts have generally applied in sensible ways.  But a possible lesson here for religious-liberty advocates (applicable in other contexts too) is to beware of pushing the envelope too much.

Thursday, May 31, 2012

Scholars Letter on North Dakota Religious Liberty Amendment

Yesterday I blogged about the debate over the proposed North Dakota amendment to apply the "compelling interest" test to state religious-freedom claims (see my own op-ed defense of the proposal).  Now, to counter the groundless warnings about what the proposal would do, a group of religious liberty scholars (including MOJers Garnett, George, Sisk, and Berg) have issued a letter to the state legislative council, making among others the following points:

If the sky has not fallen in the 31 states where these provisions are already the law, including neighboring states like Minnesota, there is no reason to think the experience will be any different in North Dakota. 

Indeed, these laws typically do not wind up applying to large numbers of cases. But those few cases are often of intense importance to the people affected. We should not punish a person for practicing his religion unless we have a very good reason. These cases are about whether people pay fines, or go to jail, for practicing their religion—in America, in the 21st century.

Former NY Capital Defender Kevin Doyle

Kevin Doyle lost his job as head of NY state's capital defense office for a really good reason: the state abolished the death penalty. Here is a wonderful interview with him that ranges over many important topics, including (briefly) his own reflections on fighting lymphoma. Kevin spoke and wrote for the St. Thomas Law Journal's symposium several years ago on "The Future of Pro-Life Progressivism." You can download his remarks here. They were witty, tough-minded, compassionate, and wholly and deeply Catholic (his first category of advice: "Don't burn your bridges, but make damn sure you char them"). The same features come through in this interview. Read it for an uplifting reminder, amid all the bickering these days, how many people are out there living the faith powerfully. Thanks and prayers for Kevin.

Wednesday, May 30, 2012

Religious Freedom Debate in North Dakota

They're really at the cutting edge In North Dakota now: they're awash not only in oil, but also in controversy over religious freedom. A proposed state constitutional amendment, on the ballot for June 12, would adopt for the state the "burden on religious exercise/compelling interest" test already applicable to the federal government through RFRA and to 27 states through statutes or constitutional rules. But the proposal has come under attack from a variety of groups. The Minneapolis Star-Tribune, which reaches much of the state, suggested in an editorial that the amendment was merely the handiwork, and for the benefit, of Catholic bishops and religious-right activists. So I published this op-ed response in the paper arguing that such measures protect religious liberty even-handedly, and with reasonable limits, for all.

As I've said here before, a great challenge today is to convince citizens of all political stripes that vigorous religious freedom is not just a ploy for the right--because more and more people dismiss it as that--but an inheritance of all Americans and a treasure of our society.

Friday, May 25, 2012

Tom Mengler's Legacy: "Why a Catholic Law School Should Be Catholic"

As I write this post, Tom Mengler is finishing his last day as dean at  St. Thomas.  Susan has already expressed the mixed feeling of sadness and peace that we feel as Tom and Mona follow their call to his new position as president of St. Mary's University (San Antonio).  I'm reflecting today joyfully on the many things that the law school has put in motion or carried forward during the 10 years of Tom's leadership--10 of the 12 crucial first years of our institution.  It's fitting, I think, to link to Tom's own description, from his 2009/10 speech and article at Villanova, of "why a Catholic law school should be Catholic" and what has progressed and might progress on that front both among schools generally and at St. Thomas.  From his conclusion:

As we at St. Thomas have together reflected on the core of a Catholic law school, we have tried to focus principally on two reasons why we believe a Catholic law school should be Catholic: the integration of Catholic thought, as well as other religious traditions, in faculty scholarship and throughout the academic program and the encouragement of everyone in the community – students, faculty, and staff – to continue on their journeys by searching actively for the truth in their lives. We believe ultimately that from these twin goals everything that is commonly associated with a Catholic law school follows – an embracing community, a service ethic that is focused on our most vulnerable neighbors, a commitment to the highest professionalism. Grounded in an intellectual, moral, and spiritual formation, we hope to prepare our students for purposeful lives as lawyers and servant leaders of their communities. In so doing, we try to fulfill the mission of a Catholic law school.

Thanks, Tom and Mona, and godspeed.

Tuesday, May 22, 2012

Winters on the Notre Dame Contraception-Mandate Suit

Overall, I think, a fine post by MIchael Sean Winters on Notre Dame's suit. There's some inflammatory language ("Sebelius and her fellow travelers") in a post that condemns inflammatory debate, but overall it seems to me incisive, and hard-hitting in the right places and manner. Money quote:

The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship.

The Notre Dame complaint and Fr. Jenkins's letter explain cogently why, even assuming the administration's good faith in its claim to be seeking further accommodation, Notre Dame could not wait until it all might get sorted out. As is true in many cases, I think, the language of his message packs extra punch (more than most interventions on both sides of this debate) because it is measured, non-demonizing, and simply lays out the steps in the university's reasoning:

Although I do not question the good intentions and sincerity of all involved in [the further-accommodation] discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. . . . We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.

Friday, May 11, 2012

Gerson and Christianity Today on the Shifts re Same-Sex Marriage

Michael Gerson writes on millennials in general shifting toward acceptance of same-sex marriage; Christianity Today summarizes the shifts among young evangelicals.  I agree with what I take to be Gerson's overall message (albeit one he appropriately qualifies and hedges): this trend is likely to continue rather than reverse.  Part of the shift on gay marriage may be due to a decline in religious commitment among millennials compared with people of the same age in years past (although the causation could run the other way too: Gerson cites a study suggesting that millennials may be leaving religion in part because they perceive it as "anti-gay").  But even significant  conversions to traditionalist/conservative Christianity don't seem likely to stop the trend, given the ongoing changes in the attitudes of young evangelicals that CT reports.

I know that some others on the blog think that traditionalist Christians must succeed in stopping same-sex marriage altogether--and must elevate that strategy over appeals to pluralism to protect their own religious-liberty rights--because once SSM is established, appeals to pluralism and religious liberty will be hopeless.  But Gerson thinks, and I agree, that conservatives will have to shift toward the pluralism/religious-liberty emphasis:

And the generational shift will inevitably influence the fights conservatives choose to make. Even a significant portion of millennials who regard homosexuality as immoral support gay marriage out of a commitment to pluralism. And arguments in favor of pluralism have a tremendous advantage in America. In much of the country, social conservatives may need to choose a more defensible political line — the protection of individual and institutional conscience rights for those who disagree with gay marriage. It is also a commitment of genuine pluralism to allow those with differing moral beliefs to associate in institutions that reflect their convictions.

Petition re Democrats and Abortion

As a member of the board of Democrats for Life of America, I encourage interested readers to sign this petition.  It calls on the party to change its platform language to express greater openness to pro-life positions and voters.  As the accompanying DFLA press release notes, former President Carter recently made an exhortation along similar lines.

Wednesday, April 18, 2012

USCCB Opposes Cuts in Aid to the Poor

The USCCB has released the text of several letters to various congressional committees criticizing proposed budget cuts in aid for the poor.  To quote from one of the letters: although there is a need to cut the deficit,     

Just solutions, however, must require shared sacrifice by all, including raising adequate revenues, eliminating unnecessary military and other spending, and fairly addressing the long-term costs of health insurance and retirement programs. The House-passed budget resolution fails to meet these moral criteria. We join other Christian leaders in insisting "a circle of protection" be drawn around essential programs that serve poor and vulnerable people. I respectfully urge that the committee reject any efforts to reduce funds or restructure programs in ways that harm struggling families and people living in poverty.

Michael Sean Winters:

Some on the left have been highly critical of the USCCB lately, charging them with serving as tools of the GOP because of their embrace of the cause of religious liberty. I hope that all liberal Catholics will congratulate the bishops on these magnificent letters and urge them to continue to fight for the poor and the vulnerable in our society. The poor have no K Street lobbyists to make their case in the halls of Congress. . . . But, week-in and week-out, year-in and year-out, the USCCB has been fighting for programs that assist the poor and vulnerable, serving as the voice of the voiceless.