As Rick notes, Yuval Levin's piece today and Ross Douthat’s column yesterday are valuable reflections on the importance of institutional pluralism in a liberal society, a point underappreciated by many, including Douthat's colleagues on the editorial board. Yuval and Douthat show that the disagreement over the HHS mandate is a debate over whether and in what circumstances the coercive power of the state should be employed against the institutions of civil society. As Yuval observes, Catholicism (and especially American Catholicism) is a uniquely institutional form of religion, with social service agencies, hospitals, and schools at every level, and Catholic institutions are, not surprisingly, on the front lines of these battles. It strikes me that one’s view of the HHS mandate will often vary depending on whether one embraces “the logic of congruence,” in Nancy Rosenblum’s phrase, or a robust commitment to the freedom of civil society (churches, civic organizations, families, etc.), including toleration for views one sharply disagrees with. If the former, then you just have to bide your time until your side has a grasp on the levers of state power, and so, as Douthat points out, the increased authority of the state in these matters will eventually gore everyone’s ox--liberal or conservative, religious or not--depending on the politics of the administration. As Rosenblum and Robert Post put it in the introduction to Civil Society and Government (Princeton, 2002):
Advocates of congruence fear that the multiplication of intermediate institutions does not mediate but balkanizes public life. They are apprehensive that plural associations and groups amplify self-interest, encourage arrant interest-group politics, exaggerate cultural egocentrism, and defy government. What is needed, in their view, is a strong assertion of public values and policies designed to loosen the hold of particular affiliations, so that members will be empowered to look beyond their groups and to identify themselves as members of the larger political community. The “logic of congruence” envisions civil society as reflecting common values and practices “all the way down.”
All of this was diagnosed by Tocqueville, who saw that individualism and statism are reinforcing over time, crowding out religious and other forms of associational life for the allegiance of citizens:
As in periods of equality no man is compelled to lend his assistance to his fellow men, and none has any right to expect much support from them, everyone is at once independent and powerless. These two conditions, which must never be either separately considered or confounded together, inspire the citizen of a democratic country with very contrary propensities. His independence fills him with self-reliance and pride among his equals; his debility makes him feel from time to time the want of some outward assistance, which he cannot expect from any of them, because they are all impotent and unsympathizing. In this predicament he naturally turns his eyes to that imposing power which alone rises above the level of universal depression. Of that power his wants and especially his desires continually remind him, until he ultimately views it as the sole and necessary support of his own weakness.
It frequently happens that the members of the community promote the influence of the central power without intending to. Democratic eras are periods of experiment, innovation, and adventure. There is always a multitude of men engaged in difficult or novel undertakings, which they follow by themselves without shackling themselves to their fellows. Such persons will admit, as a general principle, that the public authority ought not to interfere in private concerns; but, by an exception to that rule, each of them craves its assistance in the particular concern on which he is engaged and seeks to draw upon the influence of the government for his own benefit, although he would restrict it on all other occasions. If a large number of men applies this particular exception to a great variety of different purposes, the sphere of the central power extends itself imperceptibly in all directions, although everyone wishes it to be circumscribed.
Thus a democratic government increases its power simply by the fact of its permanence. Time is on its side, every incident befriends it, the passions of individuals unconsciously promote it; and it may be asserted that the older a democratic community is, the more centralized will its government become.
As Rick notes, today is the Feast of St. Thomas Aquinas. Here's a bit from a homily preached at Blackfriars (Oxford) on this feast by my late friend Herbert McCabe, OP:
St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.
Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?
....
This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.
My friend David Skeel (Penn Law) has a good op-ed in today's Wall Street Journal about recent religious freedom matters. I thought this point about the politics of religious freedom was especially well-taken:
The Obama administration's reluctance to accommodate is also at odds with many years of progressive efforts to enhance protection for those whose religious views are out of the mainstream. Liberals were strong supporters of the Supreme Court's decision to exempt Jehovah's Witnesses from saluting the flag in 1943, and they were vociferous critics of a 1990 Supreme Court decision that upheld the denial of unemployment benefits for Native Americans who smoked peyote, an illegal drug, in religious ceremonies.
In contrast to the bizarre argument underway in some forums that the HHS mandate is the Church's own fault or that this is a great victory for individual conscience against oppressive religious institutions, I'd like to think that MOJ's distinctive role in our little corner of the blogosphere is to bring us back to the legal issues in play, since we are, after all, talking about administrative implementation of a federal statute. To that end, Michael Greve has a post at the Liberty Law Blog that spells out the unprincipled and ad hoc means by which the Administration has gone about this whole process:
The Affordable Care Act (ACA) requires certain employer health plans to cover preventive care for women without co-pays or deductibles, “as provided for in comprehensive [but then non-existent] guidelines supported by the Health Resources and Services Administration [HSRA].” ACA §1273 (a)(4). In July 2010, HHS proposed an IFR to the effect that “preventive” care should encompass pregnancy prevention, and it instructed the private Institute of Medicine (IOM) to provide guidance. The IOM invited and heard presentations from such groups as the National Womens Law Center, Planned Parenthood, and the Guttmacher Institute (but not from any religious group). Predictably, the IOM urged inclusion of the full panoply of FDA-approved devices and procedures, including sterilization and so-called “morning-after” and “week-after” pills. (These drugs “prevent” pregnancies after they have begun. Many Christian denominations in addition to the Catholic Church view them as abortifacients.) Within less than two weeks, without further notice or public comment, HHS adopted this position in an IFR and HSRA issued guidelines. 76 Fed.Reg. 46621 (published Aug. 3, 2011), 45 C.F.R. § 147.130; http://www.hrsa.gov/womensguidelines.
Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.
This “process” has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t. And the administration has proceeded by IFR, without the full notice-and-comment rulemaking apparatus of the Administrative Procedures Act. The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security). A rule that can be suspended for a year can’t have been that urgent to begin with.
An important, but, I think, sometimes neglected aspect of the mission at many Catholic universities is fostering an appreciation for the wider accomplishments of Catholic intellectual life and of the sponsoring religious order. There is special reason for those of us at Augustinian institutions such as Villanova to celebrate because among the new cardinals announced by Pope Benedict XVI last week is Father Prosper Grech, OSA, the noted Maltese biblical scholar, co-founder of the Augustinianum in Rome, and the first Augustinian friar in over a century to be made a cardinal. (And the Jesuits can celebrate the elevation of Father Karl Josef Becker, SJ.)
Following on Rick's and Marc's posts, today's decision in Hosanna-Tabor is a resounding vindication of church autonomy (interestingly, a phrase that appears prominently in the concurrence by Justices Alito and Kagan) and religious freedom. Congratulations to Doug Laycock, who adds a litigation win in this major religious freedom case to his remarkable scholarly career. Two offhand things to note:
1. The Court (correctly, in my view) utterly rejects the view of the Obama Administration and some amici (see my earlier post here) that the right of religious institutions to select their own ministers isn't protected under the Religion Clauses and (what little is left of such a right) could instead be protected under the freedom of association. Chief Justice Roberts doesn't spend much time on how or why churches aren't just like the Boy Scouts (to adapt a phrase from Rick), and filling out the argument here is an important and ongoing scholarly task:
The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right "implicit" in the First Amendment. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.
We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.
2. I still think Greg Kalscheur's argument that the ministerial exception is best understood as a subject matter jurisdictional defense is profoundly right, but the Court's opinion drops a footnote resolving the circuit split and states that the ministerial exception is instead an affirmative defense (slip op. at 20 n.4). But I suppose it's a great day for religious freedom when one is left only to nitpick over the distinction between a jurisdictional bar and a defense on the merits.
MOJ (well, some of it) is moving to Rome this summer. Villanova University School of Law and the University of St. Thomas (Minnesota) School of Law have jointly sponsored a summer program in Rome for the past several years, and this summer's program will run from June 25 to August 2, 2012. Tom Berg will teach "International Intellectual Property," I will teach "State, Society, and Economics," and Tom's colleagues Wulf Kaal and Robert Kahn will teach "International Finance" and "Islam and Civil Liberties in Europe" respectively. Students can earn six credits, and those from law schools other than Villanova and St. Thomas are most welcome to apply. Details about the program, including application information, tuition, and course descriptions, are available at this site.
Speaking of whether the state is supreme over the Church, if you're looking for some beautiful Christmas music but something different than the usual fare, I heartily recommend the 2010 CD “Puer Natus Est: Tudor Music for Advent & Christmas” by Stile Antico, an English early music ensemble. The CD features music by the great English recusant Catholic composers Thomas Tallis and William Byrd, including Tallis’s Christmas Mass, probably composed in 1554 for the arrival in England of Philip II of Spain to be married to Mary Tudor, daughter of Henry VIII and Catherine of Aragon. Put it on your iTunes this season while reading Eamon Duffy’s recent rehabilitation of Mary I's reign, Fires of Faith: Catholic England under Mary Tudor(Yale, 2009).
Our own Rick Garnett will moderate a "hot topics" panel discussion on Hosanna-Tabor and the ministerial exception at the AALS meeting in Washington next month:
Hot Topic Program: Church Autonomy, the Ministerial Exception, and Hosanna-Tabor v. EEOC
Saturday, January 7, 2012
10:30am-12:15pm
Moderator: Richard W. Garnett, Notre Dame Law School
Speaker: Caroline Mala Corbin, University of Miami School of Law
Speaker: Leslie C. Griffin, University of Houston Law Center
Speaker: Douglas Laycock, University of Virginia School of Law
Speaker: Christopher C. Lund, Wayne State University Law School
Speaker: Robert W. Tuttle, The George Washington University Law School
Over the past forty years, courts have developed the “ministerial exception,” a legal doctrine which has immunized churches from employment-based claims brought by their clergy (and others with significant religious duties). The lower courts have generally recognized the exception, though they have disagreed on when exactly it applies and what exactly it covers. The Supreme Court, however, has never clarified its boundaries or even said it exists at all.
This fall, the United States Supreme Court heard argument in Hosanna-Tabor v. EEOC, its first ministerial exception case. The case involves Cheryl Perich, a teacher at a Lutheran parochial school and commissioned minister in the faith, who brought state and federal retaliation claims against the church that had employed her. Hosanna-Tabor raises various issues about the ministerial exception itself—whether it exists, how it applies, and who it covers. It also raises larger questions about the right of church autonomy, the meaning of Employment Division v. Smith, 494 U.S. 872 (1990), and the intersection of equality and liberty.
Every Advent and Lenten season, Villanova's Office for Mission and Ministry commissions a set of short reflections from faculty, staff, and students on the readings for each day (link here). Here is my assigned reflection on today's reading, Matthew 1:1-17:
Today’s gospel reading—Matthew’s account of the genealogy of the Messiah by listing the dozens of ancestors of Jesus—is usually thought of as among the most tedious in the New Testament, much dreaded by preachers, rarely put on prayer cards, and never chosen for weddings. But in it we hear at two lessons for us.
First, Christ did not come to redeem our ideas about our salvation but instead to redeem our material, bodily history itself. Christianity does not teach a myth about the way God happened to save us. Christianity preaches the reality of God’s redemption of the world in and through a human being born of the House of Israel. In the genealogy of Jesus we hear the flesh and blood history of the people of Israel through whom God revealed himself and saves us.
Second, the ancestors of the Messiah are not generally the nice, quiet, kindly people we might imagine. In fact, the central figure in the genealogy of Jesus—David—was the unlikely shepherd boy chosen to be anointed as king, whereupon he ordered the murder of the husband of a woman he impetuously fell in love with and then fathered Solomon with her. As Herbert McCabe, OP notes, “The whole story of David, the ruthlessly and highly successful bandit who, in the power of the Holy Spirit, got control of a whole confederacy of tribes, is, of course, full of intrigue and murder—successful intrigue and murder.” A reader of Matthew’s genealogy of Jesus who knows the Old Testament figures recounted there would see that Jesus’ ancestors were, for the most part, sinful, corrupt, venal, murderous, and unfaithful—just like us, which is why, as McCabe concludes, Jesus “belongs to us and came to help us, no wonder he came to a bad end, and gave us some hope.”
