The title of this post sounds, I know, like a parody of a blog-post title. That said, there's an interesting and important conversation / debate going on, between Michael Sean Winters and Cathy Kaveny, about law, religious freedom, and the HHS mandate.
Here is Kaveny's recent Commonweal column. Here is Winters' response to it, at Distinctly Catholic. And, as Michael Perry mentions below, here are the first two parts of Kaveny's four-part response (!) to Winters. Finally, here is a short post I did, the other day, regarding Kaveny's column.
The primary point of Kaveny's column, as I understand it, and also of "Part 1" of her response to Winters, is that "defining exemptions is not defining religion." (As she notes, one of the arguments often made against the mandate is that it does define religion, and that it does so too narrowly, in a way that wrongly confines religion and religious faith to houses of worship and to institutions that hire and serve co-religionists.) Now, it is true that, in fact, the mandate does not "define religion", in the sense that an anthropologist, theologian, or religious-studies scholar might do. (Indeed, such a scholar might say -- see, e.g., William Cavanaugh, The Myth of Religious Violence -- that the very idea or category of "religion" is more slippery than contemporary law-and-policy debates appreciate.) But, I'm not sure this really gets to (what is for me, anyway) the objection.
Yes, as I said in my earlier post, what religious-exemptions legal provisions (or other religion-touching provisions) are doing is not so much "defining religion" as employing various criteria to identify that which the relevant provision will treat, for purposes of the relevant regulation, as exempt. Still, the "defining exemptions is not defining religion" point is too quick, because it overlooks, I think, the fact that the exemptions in question exist for the purpose of honoring religious freedom. RFRA requires, in many instances, exemptions because RFRA has as its purpose the goal of respecting and protecting religion and religious freedom. So, the criteria that are used to identify that which is exempt are criteria that reflect the government's understanding of what religious freedom is and demands, of why religious freedom and religion are good, valuable, and to-be-respected. The criteria employed in "defining exemptions" tells us something -- they reflect premises -- about religion. And, if one starts from some premises about religion and religious freedom one will end up with different exemptions-criteria than if one starts from others. The criticism of the mandate, and of the administration, is that it started from the wrong premises (also reflected in its misguided -- extremist, actually -- brief in the Hosanna-Tabor case) about religious belief, religiously motivated activity, religious institutions and their role, etc., and that it therefore ended up with an overly narrow exemption -- and exemption that does not, in fact, do what (under RFRA) exemptions are supposed to do.
Kaveny also points out, correctly, that the mandate was not picked out of "thin air" but had, in fact, been "road tested" and upheld by some important state courts. This is true. In her view -- because "procedures" and "motives matter" (and they do) -- this fact cuts against the narrative that the HHS mandate reflects an insensitivity (or worse) to religious freedom. As I see it, though, the fact that the administration selected, from among a variety of alternatives, an unusually ungenerous exemption, notwithstanding the fact that the administration was on notice (through the notice-and-comment process) that a variety of religious groups strongly objected to that exemption, and without considering (as Sec. Sebelius admitted publicly) with care whether the exemption would satisfy the Religious Freedom Restoration Act's demanding requirements, suggests that the mandate was chosen not simply because it had been upheld in California, but because it seemed consistent with the decision-makers' (unsound) premises about the place, value, and rights of religious institutions.
In Part 2 of Kaveny's response -- addressing the (promised) "accommodation" -- she evaluates the (proposed new) exemption, and asks:
In order to answer this question, we have to recognize that claims of religious liberty are never treated as absolute. The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: “The mandate interferes with religious liberty…and it doesn’t serve a compelling state interest because it harms women and children, so it should be struck down.” That’s a no-go. The church can’t put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law.
It is true that an interest is not rendered non-compelling, for purposes of applying RFRA, simply because the interest does not cohere with the Church's teachings. It is also true, though, that the government's characterization of an interest as "compelling" does not end the matter. In constitutional litigation, courts scrutinize regularly and closely -- in cases where regulations burden fundamental rights -- the government's asserted interests to be sure (i) the stated interest really is the interest, and not just a cloak for something else; (ii) the stated interest really is weighty (and permissible); and (iii) the stated interest is being pursued in a way that burdens the fundamental right at issue as little as possible. Those of us who object to the mandate contend (among other things) that (a) the government's willingness to exempt a great many employers from the HHS mandate altogether undermines its claim that the interest is so compelling as to justify this burden on religious employers and (b) because less burdensome ways of pursuing the interest in question are available, they are therefore required by RFRA. The existence of RFRA, which commits the government to an accommodationist approach, rules out the argument that the mandate is the most convenient way of pursuing its interest.
A few new contributions to the ongoing debate about the wisdom, justice, and legality of the HHS contraception-coverage mandate. Marybeth Hicks urges us, here, to "stand with Hobby Lobby," and in so doing to "rally around a Christian family whose religious liberty is being infringed." In Commonweal, my Notre Dame colleague Cathy Kaveny argues that it is a mistake to contend, as some of the mandate's opponents do, that the mandate objectionably "defines religion," when in fact, she says, it "define[s] exemptions to the mandate applicable to institutions that certify themselves as religious, while balancing competing concerns in light of the purposes of the particular law [it is] implementing." At Distinctly Catholic, Michael Sean Winters replies to Kaveny, and re-iterates his case against the mandate:
[T]his fight has always been about the integrity of our Catholic institutions. They may govern themselves badly or govern themselves well, but they should be permitted to largely govern themselves. They will be different from their secular counterparts, to be sure, but why is homogenization a good thing? I thought liberals liked diversity? There are certainly overriding government interests that should bind religious institutions: They should not be able to discriminate on the basis of race, after all. And, protecting women’s health is, like preventing racial discrimination, and clear and compelling government interest. But, there are easy alternative methods for meeting the compelling government interest of providing free access to contraception and I do not discern any such corollary in terms of preventing discrimination. HHS could, at very reasonable expense, provide this coverage to women who work at exempt institutions through the exchanges that are being set up, or through a government website. In fact, devising such an alternate route would achieve what women’s groups say they want, universal coverage, which is something that they do not have now and will not have under any iteration of the final rule. It is vital that the decision makers in the White House see this: Instead of fighting over the scope of the exemption, they should be finding a way to keep a robust exemption and deliver the desired coverage by a different means.
Kaveny's piece also connects with this essay, from Public Discourse, "The Religious Liberty Case against Religious Liberty Litigation," by another Notre Dame colleague, Phillip Munoz. It's worth re-reading.
I agree with Cathy that, in a pluralistic society, the project of accommodating religion is more challenging than it would be in a homogenous society. In some cases, religious objectors cannot be accommodated, consistent with the common good. In this case, though, it seems to me both that (a) on the merits, the mandate does not advance the common good and (b) even if it did, the government could easily accommodate -- and therefore should accommodate (and also, in my view, is legally required to accommodate) -- those who object to it for reasons of religious conscience or religious institutional character.
I am also inclined to agree with Cathy that the claim that the mandate is wrong because it "defines religion" is not entirely right, or is at least more complicated than those making it sometimes make it sound. After all, if one has a legal regime -- as we do -- that singles out "religion" for distinctive treatment (see, e.g., the First Amendment, but also RFRA and various tax-law provisions) one has no alternative to defining, for particular purposes, and not necessarily in an all-encompassing or grand sense, "religion." That said, the exemption-eligibility definition -- whether in the mandate context or in another -- does and will reflect certain premises and judgments about religious practices, traditions, beliefs, and believers, and those premises and judgments can be more, or less, appreciative of religious faith, religious conscience, and religious institutions' freedoms. Here, they are not appreciative enough, in my view.
Here (HT: Distinctly Catholic) is a really good post by Bishop Daniel Flores, of Brownsville (who, among other things, is a member of the USCCB's Ad Hoc Committee on Religious Liberty). It's tempting -- maybe it's even easy -- for those of us who have been, in one way or another, "involved" in the pro-life movement for decades, to think that, really, it's over. "Sure," we might say, "we can bear witness to the wrong of Roe, and maybe secure some small legislative and judicial improvements at the margins, but the world is what it is, and the abortion license is here to stay." Bishop Flores urges us to remember that "it doesn't have to be this way", and uses my daughter's favorite book (this month), The Hunger Games:
In the trilogy the Hunger Games, the author Suzanne Collins presents a stark world where the mesmerizing power of death is clearly displayed. Death has become a game designed to entertain everybody and control everyone. There are characters in the story who are the innocent victims of the power that makes death into a game and a means of control. The principle victims are children. Bizarre as the set up of these novels is, it is not unthinkable that the world could reach a stage where death is accepted as a spectacle, where the powerful use children as pawns to create a manipulative diversion ultimately aimed at maintaining power and control. I am no literary critic, just a reader, and some of my literary friends find the books painfully discouraging. But I see little glimmers of light in the tail. I am convinced the author is looking to tell the reader that it doesn’t have to be this way; death does not have to win. Despite the unleashing of the full mesmerizing power of death to blind an entire people to the goodness of life, the social order rooted in the teeth of the dragon -- so to speak -- does not triumph in the end. The conclusion does not show us a final victory in favor of life, but it does show the reader that small moments of heroism, rooted in love and in the resiliency of the human conscience can set the stage for a better way.
There is a lesson here for us. We are here to say, ‘it doesn’t have to be this way." We don’t have to sacrifice an unborn child for somebody else to be happy. We don’t have to let utilitarian criterion govern all the decisions we make in nation, our families and in our homes. It takes a heroic, a courageous breaking-through and waking-up, though, to break the spell that death can weave in a world that so easily falls into the attitude that says “well this is how the game works; death is in charge.” But it doesn’t have to be this way. When Blessed Pope John Paul II called us to build a culture of life, he was calling us to give witness to the fact that life triumphs over death and that it is possible to build a civilization where society acts in favor of the goodness of life, from the unborn child to the aging person who is dying of a terminal illness.
This should be great. Much better than Cats. Coming soon to Oxford's Keble O'Reilly Theatre:
AN ALL-SINGING, ALL-DANCING ROMP THROUGH 2,500 YEARS OF POLITICAL PHILOSOPHY
A new musical by Eylon Aslan-Levy, Ramin Sabi & Tommy Peto
In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a selection of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and his objectivist lover, Ayn Rand.. Will he achieve his goal of defining Justice as Fairness?
The world’s first feature-length musical about political philosophy will showcase a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads. "A Theory of Justice: The Musical!" will be a light-hearted, tongue-in-cheek, camp and intellectually profound addition to the musical theatre canon.
Yesterday was the one-year anniversary of the Court's (9-0) decision, vindicating the ministerial exception and (in my view) a crucial dimension of religious freedom, in Hosanna-Tabor. Nice job, Becket Fund. (For more on my "take" on the case, go here.)
At the recent Annual Meeting of the AALS in New Orleans, the Law and Religion Section -- so ably chaired by Paul Horwitz this past year -- put on a first-rate panel on "The Freedom of the Church." (About which more here.) Michael Moreland, Michael McConnell, Sarah Gordon, and Paul Horwitz each gave excellent presentations, and Jessie Hill moderated expertly.
Paul helpfully "set up" the issue, noting that the issue is timely in part because of events and controversies like the Hosanna-Tabor decision and the HHS-mandate litigation. He then presented, and reflected briefly on, the criticisms of "religious institutionalism" that have been developed by Micah Schwartzman and Rich Schragger (in this paper).
Sarah Gordon reminded the audience that, the First Amendment's free-exercise and no-establishment clauses notwithstanding, religious institutions and (especially) their property were pervasively and closely regulated in many places during the 19th century, and suggested that this fact complicates arguments that the founders and ratifiers constitutionalized a strong "freedom of the church" principle.
Michael Moreland's very thoughtful presentation noted, among other things, that the debate in the public square and in the legal academy about religious freedom generally, and the "freedom of the church" principle specifically, is shaped -- and perhaps distorted -- by the (contingent) fact that the principle so often is in play in debates about, well, "sex." As he reminded us, the conversation needs to be about "God" and "law," too.
Finally, Michael McConnell reflected on the (he thinks) strange fact that the Free Exercise, in Smith, was held to provide almost no protection to individuals, while Hosanna-Tabor, drawing on a principle of church-autonomy that might seem less textually grounded than individual "free exercise", provided strong protections to religious institutions. (In the Q & A, it was suggested that a number of the Court's decisions -- including Kedroff (more on that case here) -- and also the original meaning of the term "establishment" provide substantial support for the principle applied, and the result reached, in Hosanna-Tabor.
Anyway, thanks very much to the organizers, presenters, and moderators for a really good AALS program.
In today's New York Times, Patrick McCloskey and Joseph Claude Harris have an op-ed that connects nicely with Marc's post, below, on Erwin Chemerinsky's recent misguided (and morally repulsive) proposal to "require all children to attend public schools and to require that they do so within districts made up of metropolitan areas." The authors are, I think, quite right that, insofar as the Church has de-emphasized parochial education as an essential aspect of her mission, she has "lost her way." They stop short, though, in their recommendations, of an essential point: It is not enough that the Church prioritize parochial education, it is also necessary that the political community provide equitable support for the very public work of Catholic schools. These schools provide a "public service", and are morally entitled to public support for doing so.
This piece, by Detroit's Archbishop Vigneron, is wonderful. Read it, share it with everyone you know, and commit yourself to doing all you can to strengthen and sustain Catholic schools and their mission. A bit:
I also believe that in order to re-launch Catholic school
education, fulfilling the
mission Our Lord is calling us to fulfill through our
schools, we need to become
agents of a fundamental renewal of our Catholic
schools. Here I look to the great
scholar Alcuin, who was the schoolmaster of Charlemagne
and a very significant reformer
of Catholic education around the turn of the 9th Century
and one of the leading lights of
the Carolingian Renaissance. Alcuin’s efforts at launching a new education
project
bore great fruit, reshaping Christian culture over 1000
years ago.
Today, we’re
Alcuin. Christ is calling us “(to) put
out into deep water” in the work of
renewal. We must
be “deep” in our selfexamination, “deep” in the changes we are
willing to make for the sake of our mission, and “deep”
in the boldness with which we
will launch out into a new way of educating our
children. Half-measures will not be
sufficient to do the job.
Our schools need our commitment, our self-investment, and
our resolve if they are to become the instruments of the
New Evangelization Christ
wants them to be.
Our children need what we have to offer in our schools, which is to
say they need Jesus, and woe to us if we fail them. Jesus himself expects this of us, and
we cannot disappoint him.
I am resolved to spend the rest of my time as Archbishop of
Detroit working to strengthen our schools. I know that you join me in that resolve,
because we know that nothing less than our children’s
salvation is at stake.
Here is Stanley Fish's "Christmas Column," "Religious Exemptions and the Liberal State." The piece is, among other things, a reflection and reaction to Brian Leiter's new book, Why Tolerate Religion? As Fish puts Brian's question: "Does the undoubted centrality of religion in the lives of its adherents suffice to justify exempting it from generally applicable laws?" Fish ends his discussion with this:
If Leiter is right and religion is no different from any other comprehensive doctrine (John Rawls’s term), why should there be a religion clause? There is of course a standard historical answer to that question. The desire for religious freedom motivated those Europeans who came to North America in the 17th century. It makes sense that the founding document of their new nation should protect the individual from state-sponsored religious discrimination (the Free Exercise clause) and protect the state from becoming an appendage of religion (the Establishment Clause). Leiter, however, is not interested here in the history of the matter. He is seeking, as he says repeatedly, a principled philosophical justification of the special treatment religion seems to receive in the Constitution. He doesn’t find one and comes to conclusions that render the religion clause largely superfluous.
He thus participates in a project inaugurated by the first important establishment clause case of the modern era, Everson v. Board of Education (1947), a case in which the majority shifted the focus from the question of whether public funds were being expended for religious purposes to the question of whether public funds were being distributed evenhandedly to religious and secular institutions alike. A religion clause issue became an equal treatment issue. In dissent, Justice Rutledge complained that by so reasoning the majority ignored “the religious factor … thereby leaving out the only vital element in the case.” Ignoring the religious factor or generalizing it out of sight has been the approved strategy of religion clause jurisprudence ever since. In fact it might be said that the purpose of religion clause jurisprudence, a purpose Leiter joins, is to ensure that the religion clause causes as little trouble as possible.
