A few days ago, I posted a link to a column by Steve Schneck on the importance of conscience-protection regarding "medical procedures that must be covered by new insurance policies offered under the health care reform law."
According to the HHS website, "historic new guidelines" have been proposed "that will ensure women receive preventive health services at no additional cost." Later in the press release, there's this:
The administration also released an amendment to the prevention regulation that allows religious institutions that offer insurance to their employees the choice of whether or not to cover contraception services. This regulation is modeled on the most common accommodation for churches available in the majority of the 28 states that already require insurance companies to cover contraception. HHS welcomes comment on this policy.
Unfortunately, this model "most common accommodation" -- which you can find here -- is very, very narrow. Consider this, for example:
In the Departments’ view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate. Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.
As I see it, an exemption that proceeds on the basis of the assumption that all that is at stake is the "unique relationship" between a "house of worship" and "employees in ministerial positions" is going to exclude from its scope a lot that matters. Now, consider the (very, very narrow) definition of a "religious employer":
Consistent with most States that have such exemptions, as described below, the amended regulations specify that, for purposes of this policy, a religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.
As I see it, there are many "religious employers" whose "conscience"-type rights should be protected that do not have as their purpose the "inculcation of religious values"; that do not limit employment to co-religionists, and that do not serve only, or even primarily, persons who share their "religious tenets." Basically, the new rules seem to federalize (for purposes of the "new" plans to which they apply) the California contraception-mandate that was litigated several years ago in the California Supreme Court. As I wrote, in this short opinion piece at the time:
In a sense, the [California law's] “religious employer” exemption’s criteria reflect, and reinforce, a controversial, sectarian, privatized notion of what religion is, and what religious communities do: Religion is about belief and values, not service, sacrifice, and engagement. By requiring, as a condition of participation in public life, that Catholic Charities acquiesce to this notion, California is not only taking sides in an irreducibly religious debate about human sexuality. It also, in Justice Brown’s words, “impoverish[es] our political discourse and imperil[s] the foundations of liberal democracy.”
My understanding is that there is still time to comment on the proposed religious-employer exemption, and there remains the possibility of revision. I hope such revisions are forthcoming. In the meantime, I would urge Mr. Schneck and other Catholics who supported the nomination of Sec. Sebelius to push back, and focus her attention on the exemption's weaknesses.
UPDATE: Michael Sean Winters, at NCR, makes the case here that the new exemption is "totally inadequate." He concludes:
Sixty days [the time for comment] is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let's hope the administration will listen.
Friday, July 29, 2011
Steve Schneck writes, at the National Catholic Reporter, in defense of conscience-protection regarding "medical procedures that must be covered by new insurance policies offered under the health care reform law." He writes as someone who was a Catholic supporter of Kathleen Sebelius (despite her bad record on abortion) and of President Obama:
Those of us who supported Sebelius’ nomination argued forcefully that she should not be penalized because her conscience reached different conclusions on contentious issues from those reached by the leaders of the Catholic church. But it would be a tragic irony if, in adopting the new rules, Sebelius declined to afford to Catholic church organizations the same conscience rights we invoked when defending her nomination. Those of us who joined “Catholics for Sebelius” did not do so to see our conscience rights eviscerated.
Now, in my view, this is not quite the right way to put it. Even assuming that it was / is "conscience" that has animated Sebelius's abortion-related actions and positions, the issue is not merely her disagreement on "contentious issues" with conclusions on reached by "leaders" of the Catholic Church, but rather her active support for policies that, the Church authoritatively teaches, are unjust. In any event, I hope that the President, and Sec. Sebelius, listen to the voices of people like Mr. Schneck. At the same time, I do not believe, with all due respect, that it should come as a surprise if they do not.
Thursday, July 28, 2011
And while we are on the subject of Pope Leo XIII, Evangelical Catholicism, and church-state relations, well understood, it is well worth reading John Courtney Murray's paper, "Leo XIII: Separation of Church and State":
Leo XIII developed the theory and practice of Church-State relationships amid the conditions created by the peculiar nineteenth-century plight of the so-called Catholic nations of Europe and Latin America. The major feature of the situation consisted in the efforts of an activist ideological sect to effect, through the control and use of governmental power, the politico-social change known as "separation of Church and state." This current phrase was pregnant both of an ideology and of a political and social program. It meant, first, the alteration of the Christian structure of politics, which had been characterized by the traditional duality of Church and state, in the direction of a juridical and social monism. It meant, secondly, the evacuation of the Christian substance of society through the establishment of a surrogate political religion which went by the name of "laicism." The first subject of the present article is separation of Church and state in this pregnant sense, which is the sense in which Leo XIII understood the thing. . . .
Here is a George Weigel essay, "Benedict XVI and the Future of the West," which I read recently and liked very much. A taste:
year ago, my subject would probably have struck some as counter-intuitive, implausible, even absurd: why would an octogenarian German theologian with little practical experience of political and economic life have anything interesting or important to say about "the future of the West"? Pope Benedict XVI's Westminster Hall address last September ought to have put paid to at least some of that cynicism. For as many Britons conceded after last September's papal visit, the elderly German theologian had indeed given the United Kingdom, and the rest of the West, a lot to think about in his reflections on the relationship between the health of a culture, and the health of the democratic institutions that culture must sustain. . . .
Evangelical Catholicism, in the line of development that runs from Leo XIII through Benedict XVI, . . . takes a rather different stance toward public life than the Catholicism of Christendom (whose conception of Church and State—or, more broadly, Church and Society—long outlasted the 16th-century fracturing of Christendom). Evangelical Catholicism declines the embrace of state power as incompatible with the proclamation of the Gospel: the Gospel is its own warrant, and the power of that warrant is blunted when coercive state power is put behind it, however mildly. Evangelical Catholicism is also wary of a direct role by the Church, as institution, in the affairs of the state. There may be moments when a robustly evangelical Church must speak truth to power, directly and through its ordained episcopal leadership, bringing the full weight of their unique form of authority to bear on a matter in public dispute. But the normal mode of the Church's engagement with public life will not be that of another lobbying group. Rather, Evangelical Catholicism takes its lead from the Second Vatican Council's Decree on the Laity (Apostolicam Actuositatem), and from Blessed John Paul II's teaching in the encyclicals Redemptoris Missio and Centesimus Annus and the post-synodal apostolic exhortation Christifideles Laici: it seeks to form the men and women who will, in turn, shape the culture that creates a politics capable of recognising the transcendent moral norms that should guide society's deliberations about the common good. . . .
I'd welcome, in particular, Patrick Brennan's thoughts about the essay, given that he knows so much more about (inter alia) Pope Leo XIII's writings and thought than I do.
Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.
This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”
(My fellow MOJ-er, Tom Berg, also did a chapter, on the school-prayer cases.) Keep your eyes open for the volume, which (if I say so myself) has a lot of really good pieces in it, by smart and interesting people. It's winding its way toward publication in the Fall of 2011. Go ahead and pre-order yours!
Monday, July 25, 2011
The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession. The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:
Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”
Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime.
I would welcome corrections from Canon Law experts and theologians, but I assume that a Catholic priest cannot tell the government what he learns in confession, no matter how serious. (Has everyone seen the old Montgomery Clift film, I Confess? Great stuff.) So, what would the point of this law be (other than to grandstand, which is certainly a venerable legislative aim)?
One possibility is that the government wants to create conflict within the Church, which I expect would happen if, say, a priest who did reveal sins learned in Confession was disciplined by his Bishop. It is possible that the goal is to put the Church -- already reeling in Ireland -- on the defensive yet again (thereby weakening still further its influence in Irish culture, politics, etc.) It's possible that those introducing the legislation really do believe that "if there is a law of the land, it has to be followed by everybody" (but I doubt it). I have to expect, as the article suggests, that such a law would mean that no priest (or anyone else) would confess to committing serious crimes, and so the Church would lose the opportunity to tell such persons to "turn themselves in."
So, again . . . what's the point?
Wednesday, July 20, 2011
SuperLawBlogger Paul Caron has posted the latest law-blog-traffic stats, here. MOJ continues to expand its vast sphere of influence. (Ed.: Huh? Rick: Shut up.)
Longtime MOJ readers know that I'm a big fan of my colleague Phil Bess's work on urbanism and architecture. (I reviewed his Till We Have Built Jerusalem here. Also, Greg Sisk engaged Bess here.) It's worth the time to read his two-part essay (here and here), published at Public Discourse, called "The Realist Philosophical Case for Urbanism and Against Sprawl."
Now, as I've told Phil (and probably imposed on MOJ readers), I do worry that the "case against sprawl" often involves cultural and aesthetic snobbery (and even worse, hostility to families-with-children) as much as sound philosophical claims about the nature and destiny of the human person. We need to be careful about romanticizing dense cities and about demonizing less-dense (and, in my view, unattractive and frustrating) suburbs. There is a lot about the "urban" that deserves criticism, and a lot about the suburban that is worth praising, or at least accepting.
What I really like about Bess's work, though, is that he is critical of the "New Urbanist" movement precisely for its failure to get beyond an emotional, taste-based case for the urban. As Bess says, the better question to ask is (in my words), "what are persons and what are they for? And, in light of the answers to these questions, how should human communities look and be built?"
