Jonathan Last has an interesting article at The Weekly Standard about the town of Ocean Grove, New Jersey, which has figured prominently in some of the ongoing discussions and arguments about the tension between religious freedom, on the one hand, and some states' antidiscrimination laws, on the other. Read the whole thing.
Friday, November 22, 2013
"The Town FEMA Turned Upside Down"
An important win for Catholic institutions in HHS litigation
The dioceses of Erie and Pittsburgh secured a preliminary injunction from a federal court against the so-called contraception-coverage mandate. The story is here. What is particularly important about this case, it seems to me, is that -- unlike the rulings that have been the subject of a lot of news coverage lately, and that the Supreme Court is likely to take up soon -- it does not involve the protections afforded by RFRA to for-profit entities or individuals operating businesses. It involved, instead, not only the dioceses themselves but various Catholic non-profit entities (Catholic Charities, Erie Catholic Preparatory School, St. Martin Center, etc.). And, the case -- unlike Hobby Lobby, etc. -- involves a challenge to the "accommodation," not the mandate as it applies to businesses.
Here is a bit from the news story:
The judge wrote in his 65-page opinion that he was ruling on whether "the Government will be permitted to sever the Catholic Church into two parts (i.e., worship and faith, and 'good works') -- in other words, whether the Government will be successful in restricting the Right to the Free Exercise of Religion as set forth in the First Amendment to a Right to Worship only."
The judge wrote that he "is constrained to understand why religious employers such as Catholic Charities and Prince of Peace Center -- which were born from the same religious faith, and premised upon the same religious tenets and principles, and operate as extensions and embodiments of the Church, but are not subsidiaries of a parent corporation -- would not be treated the same as the Church itself with respect to the free exercise of that religion."
The opinion in the case (Zubik v. Sebelius) is available here: Download Erie opinion.
A few items of possible interest, while I work on digesting the opinion. First, I was struck by the fact that the ACLU filed an amicus brief against the dioceses' motion for a preliminary injunction. That is, the American Civil Liberties Union filed a brief -- in a trial court, in the context of a motion for a preliminary injunction -- asking the court not to rule in favor of religious institutions seeking to invoke the protections of the Religious Freedom Restoration Act and the First Amendment against a government mandate. I was surprised (but maybe I should not have been).
Next, the court followed Judge Sykes's recent (and compelling) opinion for the Seventh Circuit in Korte, and emphasized that, with respect to the "substantial burden" aspect of the RFRA claim, "[i]t is enough that the claimant has an 'honest conviction' that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion." The court continued:
The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
Third, I was particularly interested in the court's conclusions that "the accommodation and the exemption divide the Catholic Church which creates a substantial burden":
[T]he religious employer “accommodation” separates the “good works (faith in action) employers” from the “houses of worship employers” within the Catholic Church by refusing to allow the “good works employers” the same burden-free exercise of their religion. . . .
Simply put, the Court is constrained to understand why all religious employers who share the same religious tenets – (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil – are not exempt; or conversely, why all religious employers do not fall within the confines of the “accommodation.” The Court made the factual determination that Plaintiffs sincerely believe that the “good works, or faith-in-action” arms of the Catholic Church implement a core and germane guiding principle in the exercise of their religious beliefs. Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?
In addition, the court noted that the Government's attempt to force a division between exempt "houses of worship"-type employers and non-exempt "good works"-type employers "unnecessarily -- and in direct contravention to the RFRA and the Free Exercise Clause of the First Amendment -- entangles the Government into determining what constitutes 'religion.'" (I would have expected the no-entanglement rule to be attached to the Establishment Clause, but . . . no matter here.)
Finally, for now, the court's response to the Government's claims about "least restrictive means" and the "harm to the Government" that would result from an injunction is hard-hitting (and correct):
The Court concludes that the combined nationwide total of all of those employers who fall within an exclusion, an exemption, or whose plans are “grandfathered” (approximately 100 million individuals are on “grandfathered” health plans) creates such an “underinclusiveness” which demonstrates that the Government will not be harmed in any significant way by the exclusion of these few Plaintiffs.
Thursday, November 21, 2013
"A lesson in Equality from California"
Our MOJ colleagues Patrick Brennan and Michael Moreland have a clear and compelling essay up at Public Discourse on Gov. Jerry Brown's (D-CA) recent, wise, and just decision to veto California Senate Bill 131, "which would have revived sexual abuse claims that have long been time-barred under California’s statute of limitations." As Michael and Patrick say, "Brown refused to allow the law to be twisted into a crude tool of vengeance." A taste:
Fairness and equality must be the grounding principles for our laws. One of the goals of the law is to protect the common good by providing justice and security for the maximum number of citizens. Statutes of limitations reflect the good judgment that remedies for legal wrongs must be fair.
A mark of bad law is the amount of collateral damage it does to innocent individuals, to vital institutions, and to society at large in seeking to remedy an injustice. The damage is often done under the guise of well-meaning intentions to remedy an injustice or identified problem. But the damage is nonetheless real.
Read the whole thing. And then, perhaps, contrast the reasonable arguments of Moreland and Brennan, and the wise decision of Gov. Brown, with the misguided claims and unjust goals of groups like this one.
Monday, November 18, 2013
"Christian humanism" and ideology
The website The Imaginative Conservative has this interesting essay, by Bradley Birzer, called "Making Modernity Human: Can Christian Humanism Redeem an Age of Ideology." It's about, inter alia, Lewis, Tolkien, Gilson, Maritain, Kirk, O'Connor, etc. It ends with this:
. . . The average American student knows that he “is worth something” and “is as good as everyone else,” but he could never name the last serious book he read, let alone one of the seven cardinal and Christian virtues. He may well not even know what a virtue is or that such a thing exists.
All of this should make us return to first principles and to the most important questions one can ask: What is man? What is God? And what is our relationship to God and to one another? The Christian Humanist does not pretend to have the answers, but he knows these questions must be raised. The Christian Humanist, wrote Kirk in 1956, understands that the “past and present are one—or, rather, that the ‘present,’ the evanescent moment, is infinitely trifling in comparison with the well of the past, upon which it lies as a thin film.” Indeed, the Christian Humanist understands that he is always a second away from eternity.
Monday, November 11, 2013
An excellent opinion by Judge Sykes in the HHS mandate case
Late last week, the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Judge Sykes, issued a preliminary injunction against the so-called HHS contraception-coverage mandate. In my view, this is one of the most detailed and deep analysis that a federal court has provided of the RFRA arguments against the mandate. I was particularly happy about the close engagement with questions of institutions' religious freedom and church-autonomy principles. (And, I liked the law-review citations on pp. 44 & 45!) Take a look.
Thursday, November 7, 2013
More on the Town of Greece case
Here is a short op-ed by me, at CNN, on the Town of Greece case. A bit:
It is always risky to make predictions about the Supreme Court's decisions based on what is or is not said by lawyers and justices at oral argument. It is also almost impossible to resist the temptation to hunt through the transcripts for clues and tea leaves.
On Wednesday, the justices heard arguments in a case called Town of Greece v. Galloway, which involves a challenge to a small New York town's practice of opening its board meetings with short prayers, delivered by volunteers. A lower federal court ruled last year that the town of Greece's prayers -- but not necessarily all legislative prayers -- violate the First Amendment's rule against "establishments" of religion.
Arguing for those challenging the prayer was one of the most respected legal scholars in America, Douglas Laycock. As his argument time was running down, Justice Elena Kagan -- one of the two justices nominated by President Obama -- shared an interesting and revealing observation. She emphasized how important it is to "maintain a multireligious society in a peaceful and harmonious way" and then added, "every time the court gets involved in things like this, it seems to make the problem worse rather than better."
A clue? Perhaps . . .
And, relatedly, here's a piece by the Becket Fund's Daniel Blomberg, "Does the Constitution Require Least-Common-Denominator Prayer?"
Wednesday, November 6, 2013
Thoughts on the arguments in Town of Greece
The Supreme Court heard arguments today in the case of Town of Greece v. Galloway and considered whether opening a Town Board meeting with a short prayer violates the First Amendment’s ban on establishments of religion. The transcript of the oral argument is here. If I were the lawyers, I'd probably be a bit frustrated by the fact that the justices made it so difficult -- and not because their questions were so insightful or to-the-chase-cutting -- to develop their lines of argument. But, that's what oral arguments have become. (Maybe, if more justices followed Justice Thomas's example . . . but I digress.)
As I see it, the lawyers’ arguments and the justices’ questions strongly suggest that the Court will continue to allow legislative prayers, without requiring close judicial scrutiny of particular prayers' content, and will also avoid any dramatic changes to its rules and doctrines. I don't think the possibility of jettisoning the "endorsement test" even came up.
The Court held 30 years ago that legislative prayer is constitutionally permissible, and today’s arguments provide no reasons to think the justices are about to change their minds. As I read it, a majority of the justices seemed to agree that, given the longstanding and widespread tradition of opening legislative sessions with prayer, it would be both inappropriate and strange to announce, at this late date, that this practice is unconstitutionally coercive. And, the justices clearly had serious reservations about getting into the business of closely examining particular prayers to make sure they are sufficiently "non-sectarian", or to draw a constitutional line between prayers that invoke "the Almighty" or "Heavenly Father" and ones that invoke "Jesus Christ" or "Allah.” (It seems to me, as a moral matter, and as a matter of basic decency, those who deliver prayers in public or official settings should keep things fairly "non-sectarian," but I don't think the Constitution requires that every legislative prayer that's delivered be "non-sectarian.")
Justice Kagan’s said, near the end of the argument session, that “every time the Court gets involved in things like this, it seems to make the problem worse rather than better.” This observation, I thought, probably reflects a concern that is probably shared by a majority of the justices, who will almost certainly want to avoid making its Establishment Clause doctrine more confusing and the job of trial court judges more difficult. And, there are two ways to avoid doing this: First, ban all legislative prayer, and second, re-affirm the Court’s earlier decision that broadly upholds the practice as deeply rooted in our traditions and practices. It seems more likely that they'll take the second route.
Guy Fawkes Day
Yesterday was "Guy Fawkes Day" (or, more precisely, for our friends across the Pond, last night was Bonfire Night).
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.
Stanford's (interesting and important) religious-liberty clinic
Brian Leiter comments, here, on a piece that ran in the New York Times a while back about Stanford's new religious-liberty clinic. While I disagree with Brian regarding his characterization of the Becket Fund for Religious Liberty's and the Templeton Foundation's support for the clinic as "dubious" or "right wing," and also disagree with him that our practice of (sometimes) accommodating religious believers through exemptions from otherwise generally applicable laws is immoral, I think he is quite right to push back hard on the idea that clinic is justified as some kind of special favor to conservatives, or Republicans, or whatever. Brian writes:
Most surprising of all is how Lawrence Marshall, director of clinical legal education at Stanford, describes it:
"The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well,” said Lawrence C. Marshall, the associate dean for clinical legal education at Stanford Law School. “My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.”
So the academic rationale for this clinic is that Romney voters need a law school clinic, on the bizarre assumption, I guess, that the only people seeking religiously based exemptions from laws are Republicans.
Yes, Prof. Marshall is right to remind those who profess commitments to diversity that ideological diversity matters too. But, it is wrong -- it is not fair to the clinic's faculty, students, supporters, and clients -- to frame and defend it as a consolation prize to the "47 percent who voted for Mitt Romney." Many (I hope!) among that 47 percent are happily to engage in experiential learning that involves service to the poor and to immigrants, say, just as (I hope!) many among those who voted for President Obama see the importance of (sometimes) accommodation religious minorities who are burdened by duly enacted generally applicable laws.
Tuesday, November 5, 2013
Douthat on marijuana legalization, gambling, and luxury-libertarianism
This recent op-ed by Ross Douthat is well worth reading. Like Charles Murray (see, for example, his Coming Apart) Douthat is sensitive to the fact that the live-and-let-live nonjudgmentalism/libertarianism of many in America's cognitive and other elites might "work" fine for those elites but is very costly to the vulnerable at the bottom -- and, increasingly, in the middle -- of America's socio-economic ladder. Elites, as Murray noted, often make good choices in life (e.g., they don't abuse drugs, they don't overdo it at casinos, they get and stay married) but they are -- because of their politically-correct nonjudgmentalism -- don't "preach what they practice." Rather, they preach something very different, and something that can, again, be damaging to the vulnerable. As he concludes:
[L]iberals especially, given their anxieties about inequality, should be attuned to the way that some liberties can grease the skids for exploitation, with a revenue-hungry state partnering with the private sector to profiteer off human weakness.
This is one reason previous societies made distinctions between liberty and license that we have become loath to draw — because what seems like a harmless pleasure to the comfortable can devastate the poor and weak.
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