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.

Wednesday, February 15, 2012

Garnett: "HHS Mandate Still Undermines Religious Freedom"

By Rick Garnett

Here is a short piece of mine, up at USA Today, on the HHS mandate and Friday's announcement of planned modifications to it.  A bit:

. . . It is true that not all those who object in good faith to the community's laws can or should be accommodated. It is also true that, in a pluralistic society, everyone sees his or her tax dollars used by governments for some programs and purposes they oppose. At the same time, a free society like ours will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would require them to compromise their integrity. This is such a case.A crucial thing to remember, both about the mandate and the promised adjustments-to-come, is that it is deeply un-American in its hostility to diversity and pluralism in civil society.

The mandate's religious-employer exemption is limited only to inward-looking entities that hire and engage only their own. It embodies the view that religious institutions may be distinctive only insofar as they stay in their place — in the pews, in the pulpit, at the altar. It reflects a troubling tendency to impose ideological sameness and conformity in the public sphere, to insist that all groups and associations act like the government, in the service of the government's goals.

The mandate prompted an impressively united reaction by those who cherish America's tradition of religious freedom and accommodation. On the left and on the right, among Republicans and Democrats, there was an appreciation for the fact that this was an overreach. It was, and still is.

"Moral Theology 101"

By Rick Garnett

David Gibson quotes a theologian "who, like several others interviewed, spoke on condition of anonymity for fear of angering the hierarchy," and says that the bishops (and the hundred or so "culture warriors" who have signed the George / Glendon / Garvey "unacceptable" letter) "fail their church's own moral reasoning" and, in essense, flunk "moral theology 101."  

First, it is quite mistaken to dismiss all of the signers of that letter as "culture warriors"; the signers include people whom I know Gibson would, on reflection, concede are very serious Catholic thinkers.  But, let's put that aside.

Obviously, the bishops and the letter's authors are closely familiar with "[t]he category of moral reasoning . . . called 'cooperation with evil.'"  It is useful for Gibson to educate his readers about this category, but wrong, in my view, to assert or conclude that the bishops and their advisors have failed to "[think] all the way through" the matter.  This (very important and valuable) way of handling and analyzing hard cases, it seems to me, provides a way to frame the engagement, but it will not, by itself, answer every hard question.  The bishops, and the letter writers, know all about -- as does Gibson, who I think is a smart writer -- the distinctions between "formal" and "material" cooperation, and between "immediate" and "mediate" material cooperation.  They reason through the problem, employing these categories, differently.  (See, for example, Robby and Sherif Girgis's pieces here and here.)

It should also be emphasized that the "cooperation with evil" analysis does not resolve the question whether the mandate illegally or needlessly burdens religious freedom, or undermines the integrity and witness of religious institutions, or creates scandal.  But, that's a matter for another time. . .

"Merits and Motives": A response to Bob Hockett

By Rick Garnett

I'm happy to agree with Bob that, as a general matter, it is better (and more Christian) to examine the merits of actions and proposals, rather than to speculate about or insinuate regarding the motives of those acting or proposing, and that -- generally speaking -- a hermeneutic of charity is to be preferred to one of suspicion.  

Sometimes, however, the evidence is what it is, and points where it does.  As Bob himself writes:  "[t]here are limits to this policy [of charitable interpretation].  Some people ultimately confirm our most frightful fears, and it likely does more harm than good to pretend otherwise in at least some such cases.  It just doesn't seem to me that we're at that point here."  With respect, when it comes to this issue (school choice & education reform) -- one that I follow very closely and with which I am very involved -- I do think we are at that point.  The proposed re-killing of the D.C. voucher program is indefensible on the merits (to quote Poppie, "On this issue, there can be no debate!" [insert disarming smiley-face emoticon here]), and the low-and-partisan-motives hypothesis -- considering the relevant evidence, history, and context -- best explains the phenomena.  As Bob says, "it . . . does more harm than good to pretend otherwise[.]" 

Tuesday, February 14, 2012

President Obama proposes to re-kill the D.C. voucher program

By Rick Garnett

Just when I resolve to follow Bob Hockett's commendable example, and try to assume the best even when I suspect the assumption is unwarranted, the President proposes to kill off the D.C. voucher program (again).  I'm sorry -- this is a mean, spiteful, unjust, and pandering thing of him to do.  It does not suggest, in Bob's words, an attachment to the "right thing."

UPDATE:  I didn't notice it at the time, but David Brooks was prescient, the other day, in his (very good) op-ed ("Flood the Zone"):

Every once in a while, the Obama administration will promulgate a policy that is truly demoralizing. A willingness to end the District of Columbia school voucher program was one such case. The decision to force Catholic social service providers to support contraception and other practices that violate their creed is another. . . .

Religiously Affiliated Law Schools Conference at Touro

By Rick Garnett

The conference schedule and registration information is available here.  This year's theme is “The Place of Religion in the Law School, the University and the Practice of Law."  See you there!

A quick response to Marty Lederman

By Rick Garnett

A few thoughts in response to Marty's post, from a few days ago, and to those others who have pressed, in defense of the mandate, the argument that the mandate is basically the same thing as a school-voucher program (in terms of burdening objectors' consciences).

I agree with Marty that there is no moral or religious-liberty right to object to paying (that is, to opt out of) taxes on the ground that the government, whose operations are in part funded by those taxes, does things to which one objects on religious.  (So, Flast v. Cohen is wrong.)  I think Marty and I also agree, though, that a situation in which the government says to A, “take some of your money and pay for X activity,” to which A objects on religious grounds?  In my view, the original mandate (which, despite Friday’s announcement, is still the law-on-the-books) is more like the latter situation than the former (while the voucher question is more like the former).  The question is whether the announced (but not yet enacted) change to the mandate moves the situation closer to the former.

I also agree that it should take something more than the assertion “X policy substantially burdens my free exercise of religion” to establish that X actually does, for RFRA purposes, burden the speaker’s free exercise of religion.   But, what is that “something more”?  We agree, I think, that RFRA-interpreting courts can inquire into sincerity, but can / should they inquire into the theological merits of the assertion?  So, if Catholic Institution Inc. asserts that “it believes” complying with the mandate would substantially burden its free exercise of religion – in part because of its understanding of cooperation-with-evil analysis and categories – should the fact that there are prominent Catholic theologians and ethicists who say “no, actually, cooperation with the mandate would not be culpable” matter?

A response to Steve and Bob re: Scalia, accommodation, insensitivity, and the mandate

By Rick Garnett

Bob and Steve both suggest, in recent posts, that we should not be too hard on the Obama administration for its insensitivity to religious freedom (an insensitivity that, in my view, is established by the at-least-clear-and-convincing evidence of the Hosanna-Tabor brief and the HHS mandate, which is -- notwithstanding Friday's announcement -- still the law), because Justice Scalia, in Smith, was insensitive to it, too.

Obviously, like any human being, Justice Scalia makes mistakes.  However, as Bob and Steve know, the comparison between (1) an interpretation according to which judicially-created accommodations from generally applicable and neutral laws are not required by the First Amendment, but legislative accommodations are both permissible and welcome (i.e., Justice Scalia's view in Smith), and (2) a decision by a political actor to refuse an accommodation (or to grant an inadequate one) that the Constitution clearly would allow, even if it does not require, misses a lot that matters.  Smith, to repeat, is not hostile to exemptions, but to judicial second-guessing of the balance struck by the political process.  The case welcomes (as has Justice Scalia in other cases) accommodations; the President, and his supporters, seem to regard them as presumptively unjustified, and warranted only to the extent the need to tamp down political firestorms requires.

So, contrary to Steve's suggestion, there is no "irony" in conservatives' expression of regret over the mandate (and over whatever modifications to it Friday's announcement might bring).  More striking, to me, than this non-irony is the apparent fact that those of Obama's Catholic supporters who (to their credit) were willing to "call out" the Administration for the arrogance displayed in Sec. Sebelius's handling of the mandate seem to have been satisfied by an announcement that (i) does not repudiate the administration's earlier insistence that the original (and still operative) form of the mandate reflected an appropriate respect for religious freedom; (ii) still will require religious employers to bear the cost (though perhaps slightly less directly) of employees' abortion-causing drugs; (iii) does nothing to revise the very narrow religious-employer exemption, which was the target of these supporters' (strong, in some cases) criticism; and (iv) seems so obviously calculated simply to shore up the base, and quiet down the critics, for the few months that remain between now and the election.  Indeed, these supporters seem -- to my great regret -- to have returned enthusiastically to the tired and sad script according to which those Catholics who persist in thinking that President Obama is not, well, awesome are nothing more than bad-faith hacks, partisans, and moral unsophisticates.  Too bad. 

Sunday, February 12, 2012

The HHS mandate is (still) inconsistent with religious freedom

By Rick Garnett

A letter, signed by a hundred or so academics, activists, journalists, clergy, and others, explaining why what is being described in the press as a "compromise" on the HHS mandate does not cure the religious-liberty difficulties with the relevant policy is available here.  Those signing include Mary Ann Glendon, John Garvey, Jean Bethke Elshtain, John Cavadini, Robert George, and many others.  Check it out.

Wednesday, February 8, 2012

Winters on the mandate, compromise, and politics

By Rick Garnett

A long post, well worth reading, by Michael Sean Winters, at Distinctly Catholic:

. . . Yes, I want a solution to this mess. But, I also want a victory by which I mean I want a really robust conscience exemption. I want any change by the White House not only to work in terms of resolving this issue but to send a clear and unambiguous statement that in this great diverse, pluralistic country of ours, there is room for us Catholics to be Catholic, with all of our quirks, and that the government recognizes that they have no business telling religious organizations what their mission is or how to manage it. I do not want the White House to cry “uncle” for the sake of crying uncle. But, when somebody punches me in the nose, and when someone punches my friends Sr. Carol Keehan and Father John Jenkins and countless others in the nose, I am not going to rush to make nice with them either. There needs to be an apology. And the President needs to go to the pro-choice caucus and explain that their stance imperils the entire Affordable Care Act, both politically and legally, and without that, they would not be discussing extending contraception to anyone.

Make no mistake about it - those who support denying Catholic institutions a more robust exemption have placed their commitment to pro-choice orthodoxy above their commitment to health care reform. Is that progressive? Is that something progressive Catholics, who fought so hard to pass the ACA, want to defend? It is time for so-called progressive Catholics to stop serving as chaplains to the political status quo and recognize a first principle when they see one. It is time for Catholics to insist that a conscience exemption that only applies to religion on Sunday and no help for the poor unless they are also Catholic is no conscience exemption at all. And, if the White House doesn't see it that way, let them pay the political price for it. This isn't a neighborhood bridge game. It is politics.

The HHS mandate and religious freedom: A short response to Eduardo

By Rick Garnett

MOJ-alum-and-friend Eduardo Penalver is, I think, right to observe that religious exemptions from otherwise-valid, generally applicable laws raise many tricky questions:  For example, should "religious" objections to compliance with such laws be treated differently than "non-religious-but-deeply-felt" objections?  (I think the answer here is often-but not always-"yes," but the question is certainly disputed.)  If so, how do we define "religion" so as to distinguish religion-based objections from (merely) conscientious objections?  (As Eduardo notes, he wrote an important article on this subject.)  And, given (as I think it is given) that even a just and well-ordered political community cannot and should not accommodate all requests by religious believers and institutions for exemptions from general laws, how should we go about identifying those situations when it should?

I think, if I read his post correctly, that Eduardo and I agree that, whatever the result should be in some other cases, in this case, an accommodation would have been, and is, appropriate.  As I see it, (a) the burden is significant and (b) accommodation would not excessively hamstring the government's ability to achieve what it regards as the important interest served by the preventative-services-coverage mandate.  (I happen to think it is bad policy to mandate coverage of abortion-causing drugs and sterilization, period, but that is a separate issue.)  And so, whatever the merits of a constitutional challenge under current doctrine, the merits of the RFRA argument are, I think, quite strong.

With respect to the "politics" of the decision, I am confident that the Administration determined that its political interests were better served by risking alienating some Catholics who had supported him than by alienating those in his base who lobbied strongly for the mandate.  (The recent goings-on with Komen certainly illustrate this part of the base's influence.)  And, I suspect he was advised that the alienation of many Catholics from their bishops, coupled with the fact that most Catholics do not accept the Church's teachings when it comes to contraception, could be safely relied on to reduce the extent of any Catholic defection from his body of supporters. 

What's next?  I wish I knew.  Unlike some, who persist in the confidence that this Administration isn't really insensitive to religious-liberty concerns, I think it's hard to avoid the conclusion that is.  Still, I hope the Administration re-considers, and does not find itself in the position of imposing crushing penalties on those institutions that refuse to comply with the (unjust) mandate. 

UPDATE:  According to this piece, in the Washington Post, some in the Administration think the mandate is a political opportunity, not a liability.

Finally, I have to say that I think Eduardo is wrong to dismiss "the mostly fatuous 'religious freedom' line of attack that religious conservatives have strategically adopted as their new all-purpose refrain in the culture wars."  If religious freedom is increasingly at stake in "culture wars" battles, it seems to me that it is not because of a "strategic" decision by "religious conservatives," but instead because one side in those "wars" increasingly sees religious freedom and pluralism as obstacles -- though vulnerable ones -- to its efforts.  Sure, some religious-liberty claims are losers but, at present, I think what Eduardo calls a "line of attack" is looking more and more like a very necessary defense.

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