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, July 19, 2012

Belmont Abbey Lawsuit Dismissed on Standing and Ripeness Grounds

By Marc DeGirolami

Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey College's law suit alleging that the contraception mandate violates RFRA and the First Amendment.  The grounds are lack of standing and ripeness.  The court rejected the government's claims that Belmont Abbey lacked standing because it qualified for "grandfathered" status.  It also rejected the government's claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not "too remote."

But the court accepted the government's claim that Belmont's injury was too speculative because of the government's stated intention to engage in new rulemaking before the expiration of the safe harbor.  It rejected Belmont's claim that "non-binding promises of future rulemaking" can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.  "The government," said the court, "has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith."  The court also dismissed the case for lack of ripeness.

There is an interesting feature of the case that appears in the ripeness discussion.  Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception.  The court said this:

This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization's plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff's concerns.

Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication on an otherwise final rule is to file a notice of proposed rulemaking.  Though the court acknowledged this possibility, and it even said that the "circumstances are slightly less favorable to the agency here" than in another case where this possibility had been raised, it took the government at its word -- or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be.  Dismissal was without prejudice.

Wednesday, July 18, 2012

More thoughts on the "Now that's real religious persecution" argument

By Marc DeGirolami

I had started to write an unreadably long comment in response to Matt Lister's smart reaction to my previous post, but just decided to post anew. 

I'll frame my comments as a response to Matt's first point about the non-uniqueness of the argument (though I think I'll rope in his second point too).  As an initial matter, I think Matt is right, as I've also heard this style of argument in the context of poverty, or more generally in the context of deciding to which moral cause it is most useful to allocate one's energies.  But I had two thoughts:

(1) The argument makes a bit more sense to me when the subject is individual morality -- the questions of what is the right way to act, and to what issue or moral problem it is worth devoting one's finite resources.  That's not to say that I agree with it, but I at least can understand it.  In the context of constitutionally protected rights, it makes less sense to me.  And perhaps in part for that reason, I guess, one tends to hear it much less in the rights context.  Can you think of any other context involving a constitutional right in which one hears the argument?  I think it would be very odd to hear it in, e.g., the free speech context.  It would be highly unusual to hear something like the following: "Well, sure, the Stolen Valor Act may or may not be a violation of the constitutional right of free speech, but look at all of the terrible ways in which free speech is violated abroad!  That's real suppression of free speech for you, and it suggests that something like the protection of intentional lying just isn't that important."  My guess is that the reason such an argument as to free speech would seem odd to us implicates Matt's second point.  That is, our culture of free speech protection is extremely vibrant.  And that goes for most other constitutional rights too: most people think that a right is a right, and ought to be vindicated irrespective of how gross the violations of it may be in other places in the world.  But, as Matt suggests in his second point, the current condition or status of religious liberty by comparison with other fundamental rights is more contested, and therefore weaker: we may agree about the extremes, but there is currently a broader (and perhaps ever broadening?) range of (reasonable) disagreement in the middle than there is for, e.g., free speech. 

(2) I nevertheless take Matt's point that the argument itself is not unique to religious liberty.  Still, there seems to me to be something in addition going on.  It isn't just the claim that if you really cared about X, then you'd concentrate your efforts elsewhere in the world where violations of X are gravest.  That sort of argument would apply in the poverty context that Matt raises.  But in the religious liberty discussion, there is a further argumentative move going on: if you really cared about X, then you'd concentrate your efforts elsewhere in the world where violations of X are gravest, and you'd realize how good you've got it here, and that whatever violations of X you perceive here just aren't that serious.  I am dubious that this latter move is being made in the poverty example that Matt raises -- I certainly don't think it's necessary conceptually to make that latter move.  But Matt is much more familiar with the egalitarian poverty literature than I am (many people are), so I am happy to be put straight.

Tuesday, July 17, 2012

The 'now that's real religious persecution' argument

By Marc DeGirolami

Here's an argument that I have seen repeatedly and that I have some trouble understanding.  It goes something like this: currently in the United States, one is hearing lots of nattering and complaining from various quarters that religious liberty is threatened.  But if you look at other parts of the world, that's where you will really see grave threats to religious liberty -- people's churches being burned to the ground, people facing prison time for speaking their mind about religion, people being beaten and compelled to sign statements renouncing their religious beliefs, and many other horrors.  That's "what a real war on religion looks like," in the words of the latest exponent of this style of argument, Amy Sullivan, in this TNR column, which references something that John Allen wrote. 

The people making this kind of argument might be saying that those who champion religious liberty ought to be focusing on very grave threats to it.  That is undeniably true.  It is extremely important that we all do so, exactly because those sorts of threats are often far away and therefore less immediate for us.  But they might also be saying that the best measure of the condition of religious liberty in the United States is by comparison with its worst violations abroad.  We shouldn't worry about religious liberty here, because after all, look at how bad things are out there. 

If that is the claim, it strikes me as unpersuasive.

ADDENDUM: A commenter points out that nobody would make similar sorts of comparative claims about other areas of the law where the legal protection abroad is substantially less than in the US.  This is an interesting point.  It might be that religious liberty is susceptible of this sort of comparative claim in the United States for a variety of reasons.  Possibilities: (1) the belief that claims of threats of religious liberty are being asserted in a partisan or selfish or unfair way (it is much less common to hear this claim made about, e.g., the 4th Amendment); or (2) the (growing?) belief that religious liberty -- unlike, say, the right against unreasonable searches and seizures by the government -- is not (or is no longer) as independently powerful a right as other fundamental rights.

Friday, July 13, 2012

Wisconsin Supreme Court Plurality Dismisses Breach of Contract Claim Under the Ministerial Exception

By Marc DeGirolami

The Wisconsin Supreme Court has dismissed a breach of contract claim against St. Patrick Congregation, a Roman Catholic Church in the Archdiocese of Wisconsin.  The reasoning is...complicated.

The plaintiff had entered into a one-year contract with the Church as "Director of Faith Formation," and the terms of the contract provided that dismissal was to occur only for "good cause" as determined by the Church.  It was undisputed that the plaintiff was a "ministerial employee," but the plaintiff sued for her expectation damages (that is, she had already been paid for services rendered) when the Church terminated her.

The Church did not defend on the issue of whether the termination was for good cause.  It instead moved to dismiss under the First Amendment and Article I section 18 of the Wisconsin Constitution (“The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; ... nor shall any control of, or interference with, the rights of conscience be permitted....”), on the basis that the plaintiff was a ministerial employee and that the Church is a religious institution.

The case was dismissed but the rationale is kind of a mess.  The Wisconsin Supreme Court has 7 members.  3 Justices would have decided the case under the U.S. and Wisconsin Constitutions, relying on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and the ministerial exception: "any inquiry into the validity of a religious institution's reasons for the firing of a ministerial employee will involve consideration of ecclesiastical decision-making."  Note that this reasoning extends the holding of Hosanna-Tabor, which expressly reserved the issue whether contractual or tort claims were covered by the ministerial exception ("We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.").  My own view, for what it's worth, is that the language in this opinion is too absolute and not context-specific enough.  This contract was for a very limited term.  The plaintiff was seeking expectation damages -- and we are not even told how much.  More inquiry would have been warranted, as the situation was factually different than Hosanna-Tabor.

1 Justice concurred, but would have avoided the constitutional questions altogether.  He would have decided the case on the terms of the contract, which vested sole authority in the Church to decide what constituted good cause.

1 Justice concurred, observing that Hosanna-Tabor was not directly on point but that its dicta (and similar lanaguage in a Wisconsin case) "put Wisconsin courts on high alert when they are asked to enforce a contract by a religious organization in a manner that the religious organization contends is a violation of its constitutional rights."  But ultimately he would have relied on the contractual language to resolve the dispute in the Church's favor.

2 Justices dissented, arguing that Hosanna-Tabor was inapplicable to a breach of contract case like this one.   The plaintiff's common law contract claims "do not implicate free exercise concerns," the dissent wrote.  State regulation of hiring and firing is a different issue than the resolution of a private contractual term (this distinction seems tenuous to me: wouldn't a court be "regulating" or "mandating" by resolving this dispute?).  And as for the Establishment Clause and the issue of excessive entanglement, the dissent pointed out that we simply don't know the extent to which a court would need to entangle itself with the Church's affairs to resolve this breach of contract case, because the case is only at the dismissal stage.  Excessive entanglement concerns are "speculative" at this point.  Here, I think the dissent makes an entirely reasonable point: dismissal of a breach of contract claim without any inquiry at all is a sweepingly context-insensitive approach, in my view.

The case is DeBruin v. St. Patrick Congregation, 2012 WL 2849271 (Wis. July 12, 2012).

Wednesday, July 11, 2012

What is the Place and Impact of Justification?

By Marc DeGirolami

As Rick has kindly noted, Steve Smith has posted several interesting thoughts about religious liberty over at CLR Forum.  One issue that we are considering together is the question of whether the special constitutional protection for religious liberty can be justified today, and what that justification might be.  Steve has lots of important and thoughtful writing on this question.  But there is a specific question I wanted to put to MOJ readers and writers.  Please forgive the wind-up.

Steve notes Doug Laycock's excellent recent piece titled, Sex, Atheism, and the Free Exercise of Religion.  In that article, Doug (as Steve explains) describes important sources of resistance to religious liberty as coming from the gay rights movement as well as increasing numbers of non-believers.  Because religious people are often seen as the enemy by these groups, religious liberty is also seen as something to be opposed.  Steve points out that the perception by Doug Laycock that religious liberty is under threat ought to carry weight for those who might otherwise be skeptical about similar claims made by other folks.

But my question actually has to do with a somewhat different issue.  Steve says that the sorts of real problems described by Doug are an indication that devising new, contemporary justifications for religious liberty is not merely an academic exercise, but that it is made urgent by the very real problems we face today.  I've got a little comment to Steve's post wondering about this.  Is it true that what is needed are new justifications for religious liberty -- new philosophical defenses, updated for the problems and opinions of today?  If the aim is to persuade those who disagree deep, deep down about all sorts of fundamental questions that religious liberty actually is important, is a new theoretical justification what is required?  Or are the fundamental disagreements that we have at bottom matters of intuition, identity, group loyalty, and emotion, and therefore often largely impervious to and unconcerned with the type of high-conceptual discourse that is so central to the academic enterprise?  Or is it something in between, or perhaps different altogether?  Again, if the issue is persuasion, what is the most effective method of achieving it?   

UPDATE: Paul Horwitz has some interesting things to say here. 

"The Chief End of Man is to Make General Propositions -- Adding That No General Proposition is Worth A Damn"

By Marc DeGirolami

Maybe the best thing Oliver Wendell Holmes ever wrote, described as the "Holmesian tension" and recollected in this interesting old review by Alexander Bickel.  Bickel tacks this on: "They are delusive when slogans are mistaken for them, and dangerous when they harden into dogma; yet the Court’s capacity to form and apply general propositions remains its chief end and reason for existence." 

Holmes said it better.

Monday, July 2, 2012

Steve Smith Blogging at CLR Forum

By Marc DeGirolami

Steve Smith is blogging with us over at CLR Forum for the next little while.  Surf on over to check out his first post.

District Court Issues Permanent Injunction in Bronx Household of Faith Case

By Marc DeGirolami

The latest decision in this long legal battle (which began back in 1995) was written last Friday by United States District Judge Loretta Preska, who issued a permanent injunction against the City of New York from implementing its policy of excluding Bronx Household of Faith and other organizations engaged in “worship services” from using public school facilities on equal terms with other groups.  For some previous discussion of the case, see this, this, and this.

The court readopted its legal findings from the preliminary injunction, but addressed the City’s new claims as well.  It held that the policy violated the Free Exercise Clause because it (a) was not neutral, therefore lifting it out of the framework of Employment Division v. Smith; and (b) does not satisfy strict scrutiny. 

In specific, the court said that the City policy “substantially burdens” the church’s capacity to congregate together, because of the exorbitant price of renting property in the City.  No other location than a public school would be able to accommodate the full congregation, and the church’s planned building is still under construction; other locations would compel the church to reduce its membership.

The court also rejected an argument that I’ve discussed before – the City’s claim that it has an interest in avoiding Establishment Clause violations, or in vindicating “concerns” about the Establishment Clause.  The bottom line is that the court holds that whle “a concern over an actual violation of the Establishment Clause could certainly justify a burden on the free exercise of religion under Lukumi,” a concern about the appearance of violating the Establishment Clause cannot do so.  Slip op. at 22 (and take a look at the, to my mind, persuasive footnote to Justice Scalia’s dissent in Locke v. Davey).  This was a “misperceived Establishment Clause concern” on the part of the City, not a real one.  Slip op, at 26.  Also noteworthy is the court’s emphasis on the sui generis nature of Locke, which arguably was the Supreme Court’s own view.  Slip op., at 25.

The court also held that the City’s interest in the policy was not compelling — avoiding the appearance, as opposed to the reality, of an Establishment Clause violation is not a “compelling interest.”  There was no issue of endorsement because close to 95% of all permits issued by the City go to non-religious organizations.  “In short,”

none of the scant evidence that Defendants point to proves that an Establishment Clause violation would result but for Ch. Reg. D-180’s religious use prohibitions.  Instead, the opposite is true. “[V]iewed in its totality by an ordinary, reasonable observer,” Galloway v. Town of Greece, 681 F.3d 20, 2012 WL 1732787, at *8 (2d Cir. 2012), a policy that treats neutrally all applicants—religious and secular alike—would not “convey[] the view that the [Board] favored or disfavored certain religious beliefs[.]

Finally, the court holds that the policy violates the Establishment Clause as well.  You ought to check out the affidavit of Marilynne Cole setting forth an exchange with a school board official discussed by the court at pp. 49-50.  That seems to me fairly strong evidence of excessive entanglement, as the government decides precisely which forms of religious expression and activity will be permitted and which forms excluded (“Bible study would be ok,” the official says, ” but not prayer meetings”).

Next stop: the Second Circuit.

Review of Steven Green's Book on Religion and Education

By Marc DeGirolami

I've got a review up over at The New Republic on line of Steven Green's fine book, The Bible, the School, and the Constitution: The Clash that Shaped Modern Church-State Doctrine (OUP 2012).

Thursday, June 28, 2012

And Definitely Place Not Thy Trust in Economists or Metaphysical Philosophers

By Marc DeGirolami

"To an economist, perhaps, there is no difference between activity and inactivity . . . . But the distinction between doing something and doing nothing would not have been lost on the Framers, who were 'practical statesmen,' not metaphysical philosophers." -- NFIB v. Sebelius, Opinion of Roberts, CJ, at 24.

Economists and metaphysical philosophers can still sometimes be really nice people, though.

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