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.

Tuesday, November 29, 2011

"Bad Samaritans"?

By Rick Garnett

At the Commonweal web site, Eric Bugyis lodges what strikes me as a number of misplaced objections to the Catholic bishops' religious-freedom-grounded case for an exemption from the proposed contraception mandate.  (I set out my own views about the religious-freedom problems with the mandate in USA Today yesterday.)

Mr. Bugyis writes:  "First of all, the issue is not over how and to whom religiously affiliated institutions minister, but it is about who is doing the ministering."  In fact, though, the proposed religious-employer exemption in the interim-final-rule mandate does make it relevant "how and to whom religiously affiliated institutions minister."

He writes:  "If non-Catholics are being employed to teach or doctor in a religiously affiliated institution, why should they be denied coverage for services that have been deemed medically necessary by a board of medical experts for all citizens?"  Let's put aside, for present purposes, the doubts one might well have about whether "preventative services," as defined in the interim rule, are actually "medically necessary" (notwithstanding their having been declared so by a "board of medical experts"); the definition of "preventative services", and the content of the mandate, are (at least) as much the product of ideology and politics as of medical expertise.  Why should it be the case that a religious employer loses the right -- or just the ability -- to act in accord with religious teaching simply by virtue of hiring some non-co-religionsts (who, presumably, accept the position voluntarily and with knowledge of the employer's religious character)?

He then asks, "If the bishops are so scared of being defined out of their 'religion' by the state, maybe they should divest themselves of 'secular' ministry completely."  I'm not sure if this is meant to be a serious point, or just a snarky one.  Why shouldn't the bishops prefer resisting government efforts to impose religious-character-burdening conditions on their agencies "secular" ministries to abandoning those ministries?

Finally, he says, "It is the bishops who are asking for the right to walk by those in need, if they have deemed that their needs are not really needs at all. It is the bishops who are the 'bad' Samaritans in this parable by opting out of their obligations as members of a pluralistic society."  This is also unfair (and, I think, a distortion of the "Good Samaritan" story).  How is it that the bishops are asking to "walk by those in need"?  And what exactly is the "obligation" of "members of a pluralistic society" that the bishops are seeking to evade?

I understand, of course, that reasonable people disagree over the question whether or not complying with the mandate as it stands would actually violate Church teaching or involve culpable cooperation with wrong (and also, obviously, that many people do not think that we are talking about a "wrong" here at all).  Still, it strikes me that Mr. Bugyis's post is more in tension with "pluralistic society" than are the bishops' concerns.   

Sunday, November 27, 2011

Religious Freedom and the HHS mandate

By Rick Garnett

Here is my op-ed piece, appearing today in USA Today, on the HHS mandate and religious freedom.  I humbly submit that my arguments are more-sound than Dionne's or Kmiec's.  A bit:

[G]overnments hoping to make good on Madison's promise will sometimes accommodate religious believers and groups by exempting them from rules and requirements. This sounds like special treatment for religion, and indeed it is. Our country's founders believed that such compromises are sometimes necessary and justified, even when the rules in question are popular or seem sensible, because religious freedom is both fundamental and vulnerable.

It is true that the administration's proposed mandate includes an exemption for some religious employers, but it is so stingy as to be nearly meaningless. It does nothing for individuals or insurers, and it applies only to employers whose purpose is "the inculcation of religious values" and that hire and serve primarily those of the same religious faith. The vast majority of religious educational, social-welfare and health care organizations — not to mention the ministry of Jesus on earth — do not fit this crabbed definition.

The proposed exemption covers only inward-looking, members-only, religious-instruction organizations while excluding those that respond to the call to feed the hungry, care for the sick, house the homeless and share the good news with strangers. Religiously affiliated hospitals, charities and universities that serve people of other religions would be vulnerable. The exemption assumes that religion is only about belief and values, not service, sacrifice and engagement. It purports to accommodate religious believers, but it actually would confine their belief.

We should hope, again, that the administration changes course. . . .

Tuesday, November 22, 2011

"At peace with religious freedom"?

By Rick Garnett

Doug Kmiec writes, in NCR, that "Obama cannot be at war with Catholics if he is at peace with religious freedom."  It suppose that's right; that is, if the President correctly understands the content, foundations, and implications of religious freedom, he is not likely to be "at war with Catholics."  But, I am afraid I do not see the evidence that he does, and I do worry about the evidence -- for example, the government's brief in the Hosanna-Tabor case -- that he (or, at least, his Administration) does not.  Kmiec believes, I understand, that the President is a man of admirably deep religious faith.  But, this does not mean that he actually understands and embraces the constraints that a meaningful commitment to religious freedom places on government policy and power.

In the middle section of the piece, I read Kmiec as suggesting that it does not necessarily violate religious freedom for the public authority to allow people to make wrong choices.  ("To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom.").  This is generally true (though it could well be unjust to allow people to make some wrong choices, e.g., the choice to cause the death of a vulnerable person).  But, no one -- certainly not those who are opposing the HHS contraception-coverage mandate -- is suggesting otherwise.

At least one of the commenters on Kmiec's piece reads Kmiec as pushing back against the view of the Catholic bishops (including Archbishop Dolan, whom Kmiec cites on the question of the concerns of the middle class) that religious freedom is under attack, and by the present Administration, and against the decision to emphasize this matter by (among other things) creating a new Ad Hoc Committee on Religious Liberty (which I serve as a consultant).  But, Kmiec himself acknowledges that the religious-employer exemption in the proposed interim rule (regarding the contraceptive-coverage mandate) is too narrow and intrusive, and so I have to hope that, notwithstanding his continued enthusiasm for the President himself, he understands that the President's administration has not (so far) been one that understands well or is appropriately protective of religious freedom (which includes, as Kmiec and I agree, more than the freedom of individuals to believe). 

"They have this conscience thing"

By Rick Garnett

Rep. Nancy Pelosi, chatting with the Post's "Lifestyle" section, on Catholics and abortion:

Catholic health-care providers in particular have long said they’d have to go out of business without the conscience protections that Pelosi says amount to letting hospitals “say to a woman, ‘I’m sorry you could die’ if you don’t get an abortion.” Those who dispute that characterization “may not like the language,’’ she said, “but the truth is what I said. I’m a devout Catholic and I honor my faith and love it . . . but they have this conscience thing’’ that she insists put women at physical risk, although Catholic providers strongly disagree.

 

Monday, November 21, 2011

Democrats urge Pres. Obama not to expand religious-employer exemption

By Rick Garnett

As MOJ readers know, Pres. John Jenkins (Notre Dame) and many others -- on "both sides" of the political spectrum -- have urged President Obama to re-think the very stingy exemption that exists for "religious employers" from the contraception-coverage mandate (which -- denials in some quarters notwithstanding -- will also include some abortion-inducing drugs) in the new health-insurance law.  On Sunday, the New York Times reported that many Democrats are urging the President not to agree to a "change that would grant a broad exemption to health plans sponsored by employers who object to such coverage for moral and religious reasons."

In my view, both the mandate and the narrow religious-employer exemption are objectionable.  I was struck, though, by this, in the NYT piece:

Senator Jeanne Shaheen, Democrat of New Hampshire, said: “It just doesn’t make sense to take this benefit away from millions of women. Americans of all religious faiths overwhelmingly support broad access to birth control.”

Sen. Shaheen thinks that it is relevant, apparently, to the question whether it "make[s] sense" to refrain from requiring objecting religious institutions to pay for abortion-causing drugs that "Americans of all religious faiths overwhelmingly support broad access to birth control."  Indeed, it appears that they do.  But, what work in the argument is "of all religious faiths" doing?

UPDATE:  Michael Sean Winters (who is, in my view, clear-eyed about the importance and foundations of religious liberty but mistaken in thinking that Pres. Obama is, too) notes: 

[T]here is something more than a little ironic about these liberal champions, the type of people who normally celebrate the “wall of separation” between Church and State, now clamoring over that wall as fast as they can to tell Notre Dame and Providence Hospital what they can and cannot do. Ironic, too, that liberalism which was founded on the principle of conscience rights, and at a time when the Catholic Church was unalert or hostile to the idea of conscience rights, has grown so indifferent to them while it is the Catholic Church today that champions them. But, irony is the coldest of comforts.

Tuesday, November 15, 2011

Christ the King and "Quas Primas"

By Rick Garnett

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is coming up (Nov. 20).  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

Archbishop Dolan at the USCCB meeting: “Love for Jesus and His Church is the passion of our lives!”

By Rick Garnett

Here (thanks to Rocco) is the text of Arbp. Timothy Dolan's speech this weekend at the meeting of the USCCB.  Wow. 

I was at the meeting for the first session of the new Ad Hoc Committee on Religious Liberty, which I'm honored to be serving as a consultant.  (Michael Gerson's column, here, touches on just a few of the reasons why the Administration's policies have made the work of this Committee particularly important.)

Thursday, November 10, 2011

"Leo XIII -1, John Kasich - 0"?

By Rick Garnett

That's how Distinctly Catholic's Michael Sean Winters scores the recent un-doing of the not-quite-as recent efforts to rein in public-employee unions in Ohio.  I'd rather agree with Winters, as when he's writing good stuff about the Freedom of the Church, but I'm afraid I cannot here.

I'm pretty sure I'm as big a fan of Leo XIII as there could be, and also that I've read his social-question writings (including Rerum novarum) at least as closely as most, but I'm afraid the better way to score the unfortunate outcome in Ohio is "Big Labor Money, most from out of Ohio -- 1, Our Children, Fiscal Sanity, and Doom Avoidance 0."

To be clear:  mine is not an "anti-union" or anti-labor point, nor am I calling into question the idea that the public employment should be regulated so as to make sure public employees are treated fairly, in safe environments.  Of course private-sector workers have a moral right (and should have a legal right) to unionize, and of course labor unions played an important role in securing various important employment-related regulations and reforms (as well as various in-hindsigh unsustainable practices that are sorely hurting many American companies and driving industry elsewhere).  Still, the notion that the current pensions / benefits / dues-extraction / bargaining / tenure / security regime enjoyed by public-employee unions in places like Ohio is one that is required by (or, indeed, even consonant with), Leo XIII and the Church's social-doctrine is, I think, wrong and bad for our political community and our children.

UPDATE:  Michael responds to me, here.  Two quick points:  First, Michael writes:  "Unions serve as a check on the monied interest, whose power is, in a free society, always going to be dominant. I also see unions as a key part of the social fabric, embodying the kind of intermediate social organizations called for by the Catholic social principle of subsidiarity."  I agree that labor unions (that is, associations of workers) can serve as checks "on the monied interest."  (Whether they always do is an interesting question.)  And, I have never questioned the role of unions in the social fabric or the relevance of the principle of subsidiarity.  But, again, I think this statement does not sufficiently take account of the very different dynamic at play in the relationship between public employees, the government, and taxpayers.  I think it is essential, if we want to implement faithfully the Church's social doctrine, that we take account of this dynamic. 

Second, Michael says "given the choice between raising taxes on rich folk and cutting benefits for teachers and firefighters and policement and sanitation workers, I will vote for raising taxes on the rich every day of the week."  But, with all due respect, this is not the choice I'm addressing, or the one that, really, we face.  In order to avoid very serious fiscal problems in the not-very-distant future, cutting the (in many cases) excessive and inflated and unsustainable benefits of public employees will be necessary, in part because "raising taxes on rich folk" would not and could not supply enough revenue (putting aside questions about who "the rich" are and what their fair-share of taxes should be) to sustain our current practices and meet our current entitlement-spending obligations. 

Bishop McFadden: "School Choice is a Social Justice Issue"

By Rick Garnett

Here is an excellent op-ed by Harrisburg, PA's Bishop Joseph McFadden:

Social justice flows from human dignity. To establish justice, our society must provide the conditions that allow people to obtain what is their due, including an education that prepares them to be productive citizens. Education is a basic human right. Our secular system of laws supports this principle, as every Pennsylvania child is guaranteed an education.

For parents, providing an education for their children is a moral obligation. When we look across the education landscape in Pennsylvania, however, we see that some parents, especially low-income families, have no choice but to send their children to a school that is not helping them reach their potential. This is why the bishops of Pennsylvania see school choice as a defining social justice issue for our time. . . .

Friday, November 4, 2011

"First Amendment Stories": Buy your copy today!

By Rick Garnett

First Amendment Stories (Foundation 2011), edited by Andrew Koppelman and some guy named Garnett, is out and available.  Buy yours today, here.  It would make a wonderful ____ gift for, well, anyone.  The stories of 17 of the Court's most interesting and important free-speech and religious-freedom cases and controversies -- from the Sedition Act to the Ten Commandments and lots of ones in between -- are explored in depth by a diverse group of First Amendment scholars, including Michael McConnell, Paul Horwitz, Geoffrey Stone, Vince Blasi, and many, many others.

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