Vincent Miller has, at America, a thoughtful post -- which includes some constructive criticism -- regarding the Bishops' religious-liberty efforts and statement. In two places, though, I think he's not quite right.
First, he writes that, although the "4 part test in that mandate is ill conceived" it has a "relatively minor legal status. It is neither a law nor a legal decision. It is merely a
regulatory definition. The administration has stated in writing it has no intention of using it as a precedent for any other decision. Of course it could become part of a legal decision. Indeed, that is one likely outcome of the current lawsuits." I'm not sure why Mr. Miller thinks the test has a "relatively minor status" or what it means to say that it is "neither a law nor a legal decision." It is contained in an operative regulation and it has very significant real-world effects. It is not "legislation", but it is -- from the perspective of those regulated, anyway -- the "law". And, the fact that the administration has said that it has "no intention of using it as a precedent" is small comfort. If this is true, one wants to ask "why not?" And, this very definition did serve as a precedent: The administration borrowed it from the California contraceptive-coverage mandate. It is quite reasonable to worry that this definition will be replicated in other regulatory contexts and I think it is a mistake to be confident that it will not.
Second, with regard to Smith, Mr. Miller -- like many others -- contends that the bishops' efforts fall short to the extent that they do not more explicitly point to the decision in Smith as a big part of the problem. He writes:
There is, however, another decision regarding religious freedom that is truly
epochal in its significance and scope that is completely ignored by the
document. The 1990 Supreme Court decision in Employment Division v. Smith
replaced the “compelling state interest” measure for state interference in
religious freedom with a principle that “generally applicable” laws that
incidentally result in the “prohibiting the exercise of religion” do not require
religious exemptions under the First Amendment. . . .
. . .[I]t is more than striking that his legal revolution receives no mention in the
document.
“Our First, Most Cherished Liberty” would be quite a bit more honest,
coherent, and effective if it discussed these other profound obstacles to its
goals: the divergent philosophy undergirding the American Constitution and
Scalia’s watershed reorientation of the jurisprudence of religious liberty.
But, the claims that Smith constituted "Scalia's watershed reorientation of the jurisprudence of religious liberty", that it constituted a "legal revolution", and that it was "truly epochal" are inaccurate and overstated. As I wrote a few days ago:
Some make this claim because they believe that Smith represents a wrong interpretation of the First Amendment, I know, but I think that some make it just because it's kind of fun to put Justice Scalia in the religious-freedom-villain hot-seat. Still, as I''ve probably said too many times, the claim is wrong. (For an elaboration of my view, go here.) Smith was contestible, but I think correct, interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials elected officials to respect and accommodate religious liberty, to the extent possible. Smith is a "who decides?" case (ed.: aren't they all? RG: yes, yes, I know . . . .), not a "religious freedom should lose to state interests" case.
A careful look at what was actually happening in the Supreme Court -- from Reynolds to Sherbert to Yoder to Smith -- reveals that it was Sherbert and Yoder, not Smith, that were the outlier cases. Should governments generously accommodate religious objectors? Of course . . . to the extent possible, consistent with public order and the common good. Smith does not say or suggest otherwise.
I should end this, though, by saying that Mr. Miller's engagement with Michael Moreland's work on subsidiarity is thoughtful and welcome.
I really enjoyed Beth Haile's reflection, at Catholic Moral Theology, on the Solemnity of Corpus Christi. We lawyers and "legal theorists" think and talk a lot about morals legislation and its justification, limits, possibilities; about law's limits and perfectionism; about the pedagogical and expressive functions of law; about the role of law in shaping what Robby George and others call our "moral ecology"; etc. Prof. Haile's nice post reminds me that, as Catholic legal theorists, we shouldn't forget the crucial place of, well, The Eucharist in these conversations.
Wednesday, June 6, 2012
This story in the NYT contends that, FDA labels notwithstanding, "morning-after pills" might not, in fact, cause abortions, and notes the relevance of this contention to the arguments and lawsuits regarding the HHS preventive-services mandate. Here is a response by Donna Harrison, an obstetrician-gynecologist in southwestern Michigan and director of research and public policy for the American Association of Pro-Life Obstetricians and Gynecologists.
Stanley Fish's recent NYT column about Jeremy Waldron's new book, The Harm in Hate Speech, is worth a read. It is a theme of my own Freedom of Speech course that, too often, our free-speech doctrines and rhetoric depend too much on two premises (sometimes stated, sometimes not) which are, at least, contestible: First, that "sticks and stones may break my bones but words will never hurt me"; and, second, that (see New York Times v. Sullivan) it's just "part of the deal" -- one that comes necessarily with living in a free society -- that we have to protect hateful, mean, harmful speech. In fact, speech can cause harm (it's just that we think the harms it causes either "don't count" or are "worth it" for the benefits of a libertarian free-speech regime) and the "costs" of free speech are not spread equally among those who allegedly benefit from it. Now, having said this, I still basically endorse a libertarian approach to free speech, especially in contexts like campaigns and elections (where regulations that are dressed up as efforts to fight corruption or prevent negative campaigning or equalize the playing field etc. are, in the end, pretty transparent efforts to advantage one's own "side" of the debate). Still, I think Waldron's book, and reminder, are important.
Tuesday, June 5, 2012
My friend and colleague Gerry Bradley has a worth-a-read essay up at Public Discourse on l'affaire HHS mandate. As he points out, even if this particular fracas dissolves, because the Supreme Court throws out the Affordable Care Act, or Gov. Romney wins the election, or Pres. Obama relents, the debate reflects a deeper, first-principles-level tension between religious freedom and some understanding of political liberalism. He writes:
. . . The ideological commitments that have emboldened the Obama administration about contraception are deeply held. They are held to be very important. They are resilient. They are not limited to the reproductive rights supposedly protected by access to contraception, even when contraception is broadly defined to include abortifacient drugs. These deep convictions about liberty and equality and religion entail trouble for religious liberty, no matter which exit route the present mandate takes. . . .
Over at Vox Nova, Morning's Minion links to a bunch of posts making the point -- which is quite sound, as Rob Vischer and others have shown -- that "subsidiarity" is about more than devolution, localism, or "small is beautiful," and that it is not reducible to libertarian anti-statism. One of the writers, though -- James Baresel, at The Distributist Review -- goes a bit wrong, I think, and makes some claims about subsidiarity that, I suspect, Morning's Minion would reject, or at least insist be qualified.
It is true, of course, that Catholic Social Doctrine is not "individualistic", in a liberal or libertarian sense, but it's also a mistake to frame it, without qualification, as "communitarian."
"Subsidiarity" is, as Beresel, Morning's Minion, and many others have said, a rich and challenging (for us today) idea. As Russell Hittinger has written, the core of the idea is "the existence of social persons distinct in dignity, reducible neither to the individual nor the state[.]" Indeed, "Catholic Social Doctrine . . . emerged in defense of two propositions: first, that the state does not enjoy a monopoly over group-personhood; second, that societies other than the state not only possess real dignity as rights-and-duties-bearing unities, but that they also enjoy modes of authority proper to their own society." With respect to subsidiarity specifically, Hittinger writes:
[S]ubsidiarity is not a free-standing concept. As a principle regulating and coordinating a plurality of group-persons, subsidiarity presupposes a plurality of such persons, each having distinct common ends,kinds of united action, and modes of authority. It is not, therefore, a question of whether there shall be group-persons, or whether they are efficient or immediately useful to the state. Rather, the question is how these groups stand to one another and to the state. In its negative formulation, subsidiarity demands that when assistance (subsidium) is given, it be done is such a way that the sociality proper to the group (family, school, corporation, etc.) is not subverted. . . . Rendered in Latin as sub sedeo, subsidiarity evokes the concept not only of subordinate clauses in a sentence, but also of auxiliary troops in the Roman legion which ‘sat below’, ready and duty-bound to render service. Hence, it describes the right . . . of social groups, each enjoying its own proper mode of action. While sometimes identified with the word subsidium (help, assistance), the point of subsidiarity is a normative structure of plural social forms, not necessarily a trickling down of power or aid.
