One of the more interesting issues in the controversy over the HHS mandate (or perhaps I should say one of the few that hasn't been flogged to death in the blogosphere) is the precise language regarding the scope of the exemption that HHS included for some religious employers. The final rule states that an institution is a "religious employer" for purposes of the exemption if it "meets all of the following criteria:"
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization [under the Internal Revenue Code].
45 C.F.R. § 147.130(a)(iv)(A)-(B).
Not surprisingly, those of us who object to the mandate regard this exemption as impermissibly narrow and, moreover, illegitimate government interference in deciding what does and does not constitute a "religious employer." I'm prompted to make this point because of a comment over at dotCommonweal that the exemption "is deliberately vague, of course, and there are good reasons to object to the way the Department of Health and Human Services designed the exemption--although that the government would try to figure out which institutions are religious and which are not is hardly unprecedented" (and linking to an earlier post on America's blog saying that the langauge of the exemption comes from labor and employment law). A few quick points for discussion:
The language of the HHS mandate is not (pace the author at America's blog and others inclined to view this as rulemaking as usual) borrowed from (and is substantially narrower than) religious exemptions in other regulatory settings such as labor and employment law. NLRB v. Catholic Bishop. 440 U.S. 490 (1979) and lower court interpretations of Catholic Bishop in such cases as Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc) stand for the proposition that the state cannot (as a matter of statutory interpretation of the NLRA operating under a doctrine of constitutional avoidance) pick and choose which church-affiliated institutions are "sufficiently" or "completely" religious. See also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343 (1987) (Brennan, J., concurring in the judgment) ("[D]etermining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.”)
In employment law, cases such as LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that the exemption for religious institutions from Title VII's prohibition on discrimination based on religion is reasonably broad. As Judge Roth puts it in LeBoon:
First, religious organizations may engage in secular activities without forfeiting protection under Section 702....
Second, religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection....
Third, religious organizations may declare their intention not to discriminate, as the LJCC did to the United Way and in its employee handbook, without losing the protection of Section 702....
Fourth, the organization need not enforce an across-the-board policy of hiring only coreligionists....
We disagree with LeBoon's contention that the LJCC's willingness to welcome Gentile members and even to host Hindu services is incompatible with the view that the LJCC was a religious organization. Indeed, these characteristics are clearly tied to some of the Jewish principles that guided the LJCC-tolerance toward other faiths, healing the world, and doing the right thing. We will not deprive the LJCC of the protection of Section 702 because it sought to abide by its principles of “tolerance” and “healing the world” through extending its welcome to non-Jews.
503 F.3d 217 at 230.
So where did the HHS mandate exemption language come from? As one of the lawyers on the cert petition in 2004 challenging California's contraceptive mandate, I am fairly certain that the narrow, four-prong test in the HHS mandate initially appeared in a revised 1999 draft bill by then-California state senator Jackie Speier (now a US representative). In short, the language in the HHS exemption has always been about coercing Catholic social service agencies, hospitals, and universities and colleges to provide contraceptive coverage, and the problem now is the same that my colleagues and I stated then:
Catholic Charities’ stated purpose is not to “inculcat[e]” religious values, but to carry out the Church’s religious mission to perform corporal works of mercy. It provides social services to anyone in need, whatever his or her religious beliefs. And it employs those who, regardless of their own religion, embrace Catholic Charities’ mission and understand that it is pursued in conformity with the faith and teachings of the Church of which it is a part. In the judgment of the State, Catholic Charities’ religious rights are forfeited for these reasons—because, to put it bluntly, it puts its religion into practice and does so in an all-inclusive way. There is, California seems to say, something less religious about such an organization. A truly religious organization, in its view, would be more exclusive in its associations, more single-minded in its purpose, and less concerned about the welfare of others. It would be concerned only with drilling, or “inculcating,” its beliefs into the minds of its adherents.
There is no precedent for such a narrow view of religion.
Tuesday, May 8, 2012
The Pope took up the topic of Catholic education in his ad limina address to the bishops of Colorado, New Mexico and Wyoming on Saturday. Here's an excerpt:
[T]he question of Catholic identity, not least at the university level, entails much more than the teaching of religion or the mere presence of a chaplaincy on campus. All too often, it seems, Catholic schools and colleges have failed to challenge students to reappropriate their faith as part of the exciting intellectual discoveries which mark the experience of higher education. The fact that so many new students find themselves dissociated from the family, school and community support systems that previously facilitated the transmission of the faith should continually spur Catholic institutions of learning to create new and effective networks of support. In every aspect of their education, students need to be encouraged to articulate a vision of the harmony of faith and reason capable of guiding a life-long pursuit of knowledge and virtue. As ever, an essential role in this process is played by teachers who inspire others by their evident love of Christ, their witness of sound devotion and their commitment to that sapientia Christiana which integrates faith and life, intellectual passion and reverence for the splendor of truth both human and divine.
In effect, faith by its very nature demands a constant and all-embracing conversion to the fullness of truth revealed in Christ. He is the creative Logos, in whom all things were made and in whom all reality "holds together" (Col 1:17); he is the new Adam who reveals the ultimate truth about man and the world in which we live. In a period of great cultural change and societal displacement not unlike our own, Augustine pointed to this intrinsic connection between faith and the human intellectual enterprise by appealing to Plato, who held, he says, that "to love wisdom is to love God" (cf. De Civitate Dei, VIII, 8). The Christian commitment to learning, which gave birth to the medieval universities, was based upon this conviction that the one God, as the source of all truth and goodness, is likewise the source of the intellect’s passionate desire to know and the will’s yearning for fulfilment in love.
Only in this light can we appreciate the distinctive contribution of Catholic education, which engages in a "diakonia of truth" inspired by an intellectual charity which knows that leading others to the truth is ultimately an act of love (cf. Address to Catholic Educators, Washington, 17 April 2008). Faith’s recognition of the essential unity of all knowledge provides a bulwark against the alienation and fragmentation which occurs when the use of reason is detached from the pursuit of truth and virtue; in this sense, Catholic institutions have a specific role to play in helping to overcome the crisis of universities today. Firmly grounded in this vision of the intrinsic interplay of faith, reason and the pursuit of human excellence, every Christian intellectual and all the Church’s educational institutions must be convinced, and desirous of convincing others, that no aspect of reality remains alien to, or untouched by, the mystery of the redemption and the Risen Lord’s dominion over all creation.
Tuesday, May 1, 2012
John Inazu's fantastic book, Liberty's Refuge: The Forgotten Freedom of Assembly (Yale, 2012), will be the subject of a book forum at AEI next week (Tuesday, May 8, at 4:30pm) with Doug Laycock, David Bernstein, and Judge Janice Rogers Brown (moderating). Those who can't be there in DC can watch at AEI's web site.
I want to underscore the importance of what Rick's student writes below about prayer, a point that was brought home to me by a remark that Alasdair MacIntyre made in response to a question following this lecture at Notre Dame ("On Being a Theistic Philosopher in a Secularized Culture"--the video is on the upper right hand corner of the web page, and the queston and MacIntyre's reply start at 1:25). The questioner asked about the centrality of the practice of prayer in a university to the search for truth, beauty, and goodness. I can't do justice to MacIntyre's reply, but he began by saying that we are apt to think of certain aspects of religious belief as part of a public conversation with people of different (or no) religious belief, while prayer is viewed as "private" (even liturgical prayer is among those of "us" who adhere to a particular tradition). But it is, MacIntyre said, important that we present ourselves (MM: humbly and appropriately, of course) as people who pray, including listening amid silence, although that opens oneself up to dissent and scorn because prayer is, from a secular view, the most useless and superstitious manifestation of religious belief.
As Saint Augustine writes:
But again one might ask whether we are to pray by words or deeds and what need there is for prayer, if God already knows what is needful for us. But it is because the act of prayer clarifies and purges our heart and makes it more capable of receiving the divine gifts that are poured out for us in the spirit. God does not give heed to the ambitiousness of our prayers, because he is always ready to give to us his light, not a visible light but an intellectual and spiritual one: but we are not always ready to receive it when we turn aside and down to other things out of a desire for temporal things. For in prayer there occurs a turning of the heart to he who is always ready to give if we will but take what he gives: and in that turning is the purification of the inner eye when the things we crave in the temporal world are shut out; so that the vision of the pure heart can bear the pure light that shines divinely without setting or wavering: and not only bear it, but abide in it; not only without difficulty, but even with unspeakable joy, with which the blessed life is truly and genuinely brought to fulfillment.
Augustine, On the Lord's Sermon on the Mount 2.3.14.
Monday, April 30, 2012
As we engage in the usual election-year tussles about the Catholic Church's role in politics, this passage from John Finnis's essay "Catholic Positions in Liberal Debates" (Collected Essays of John Finnis, Vol. V: Religion and Public Reasons, pp. 113-26) incisively makes about a dozen important points in the course of a single paragraph:
We should not be nostalgic for, and do not need to defend, the paternalism defended by Plato and Aristotle, or the religious intolerance of the mediaeval and post-mediaeval Catholic (not to mention Protestant) states. Nor should we accept other package deals, in which Catholicism might be yoked to a restorationist politics of conservatism or a liberationist politics of socialism or state capitalism, or whatever. So far as anyone can see, the Catholic Church is still near the beginning of its long journey to the end of the ages; its Augustinian, mediaeval, and subsequent experiments with harnessing state power were no more than a passing phase in which faith and benevolence were harnessed together without sufficient attention to differentiations which the faith itself suggests and, when developed, ratifies. If we make and insist upon those differentiations, we can peacefully and without even implicit threat affirm, in our own reflections and when and as appropriate in public, that the centre of human history is the life and teachings of Jesus Christ, and that the truths which his Church conveys, even in periods when it is humanly speaking as decayed, confused, and weak as it at present is, are the true centre of the culture which can and should direct political deliberation in western liberal as much as any other kind of political society. The disarray within the Roman Catholic Church is surely a substantial cause (as well as a consequence) of the disarray within these societies, even those societies which for many centuries have had no reason to think (or have made it their business not to think) of Catholics as other than virtual strangers.
Upon publication of a second edition of John Witte's magisterial From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, Liberty Fund has posted a podcast of an interview with Professor Witte about the book and the theological and historical understanding of marriage in the West.
Friday, April 27, 2012
As I was reminded when I taught it this past semester in a 1L elective, Thomas Hobbes's Leviathan--part scientific treatise on human nature, part philosophy of law, part theological commentary, part just plain weirdness--is the greatest work in English-speaking political philosophy. Interestingly, the only contemporaneous figure whom Hobbes engages at length in Leviathan (in chapter xlii, "Of Power Ecclesiastical") is Saint Robert Bellarmine, the great Jesuit cardinal of the Catholic Reformation most famous for his role in the Galileo affair but also an important figure in seventeenth century political theory and the defense of papal authority. The Liberty Fund has just published an edition of Bellarmine's On Temporal and Spiritual Authority, treatises that have been difficult to find in reliable translations or critical editions until now. Bellarmine is a vital resource for any account of religious institutions possessing real authority (not merely by concession of the state, see Rob's post below), and so those of us working in Catholic legal theory should be especially grateful to the Liberty Fund for this publication.
