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, May 18, 2016

"The Future of Accommodation"

By Rick Garnett

Here's my contribution to the symposium on the Court's recent (and somewhat cryptic) per curiam opinion in the Little Sisters of the Poor case.  A bit:

. . . Regardless of what happens in the ongoing contraception-coverage saga, though, there are more than a few troubling signs that this policy of accommodation and the commitments it reflects are falling out of favor and even being squarely rejected. More and more, the enterprise of accommodation of religion, which is so crucial to the creation and maintenance of civic friendship in a diverse political community, is linked in the public mind and in political arguments with reactionary and even “bigoted” resistance to or reservations about the ongoing and dramatic shifts in attitudes and laws regarding sexuality, family, marriage, and identity. Increasingly, commentators’ emphasis seems to be shifting from the invaluable work that religious civil-society institutions do to the ways in which their norms and practices differ from those of the liberal state. There is decreasing appreciation among scholars and officials for religious organizations’ freedom-enhancing role and the good of pluralism and increasing worry that these organizations’ distinctiveness might, in some cases, complicate the state’s ambitions or undermine its goals. In some quarters, there is more fear that the accommodation of religion will somehow endorse or involve an insult to a third party’s sense of dignity than there is that state action will violate the right to religious freedom that human dignity demands.

To quote the symposium contribution of my friends and colleagues Nelson Tebbe, Micah Schwartzman, and Richard Schragger, it is a “demand of justice” that political authorities in diverse and sometimes disagreeing communities avoid, to the extent their obligations to promote and protect the common good allow it, burdening religious exercise or violating religious conscience. We should hope that, going forward, this demand will be heard and heeded. There is no denying, though, that to the extent the right to religious freedom is regarded as a luxury good, a license to do wrong, or as special pleading by the culture war’s losers, it is increasingly vulnerable. This should concern us all, because believers and nonbelievers alike benefit from a legal and cultural commitment to religious freedom and have a stake in the legal regime that respects and protects it.

Monday, May 16, 2016

Call for Papers: "You Are Beauty"

By Rick Garnett

Here's the Call for Papers for the always-enjoyable-and-inspiring annual Fall Conference of the Notre Dame Center for Ethics & Culture:

Each year on the campus of Notre Dame, the Center hosts its interdisciplinary Fall Conference, the most important venue for truly fruitful dialogue and exchange among the world's leading Catholic thinkers, as well as those from other traditions, on pressing and vexed questions of ethics, culture, and public policy. The Conference attracts five hundred to six hundred participants annually and features more than one hundred paper presentations in disciplines ranging from philosophy, theology, political theory, and law to history, economics, science, and the arts.

Our 17th annual Fall Conference, "You are Beauty: Exploring the Catholic Imagination," will consider “aesthetic contemplation sublimated in faith” (“Letter to Artists,” Pope St. John Paul II), exploring the relationship between the imagination, beauty, truth, and religion in a variety of contexts, particularly the arts, music, architecture, literature, philosophy, theology, political theory, and the sciences.

To submit a paper for the Fall Conference, please email a one-page abstract and a CV to [email protected] by July 1, 2016. Notification of acceptance will be made by August 15, 2016. The conference will take place November 10 - 12, 2016 at the University of Notre Dame.

Walker Percy responds to "Why Are You a Catholic?"

By Rick Garnett

From Walker Percy's essay, "Why Are You a Catholic," in his collection, Signposts in a Strange Land:  "The reason I am a Catholic is that I believe that what the Catholic Church proposes is true."

Following Percy's lead, I'll drink to that.

 

Zubik v. Burwell Remanded to Lower Courts

By Marc DeGirolami

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts' respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the "substantial clarification and refinement" in the claimants' and the government's respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company....The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” 

Disagreements as to implementation to be worked out below. No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court's order essentially to make crystal clear to the government that she was sympathetic to its views.

Congratulations to President Scaperlanda!

By Rick Garnett

"President Scaperlanda" has a nice ring to it, I think.  And, here's the great news from St. Gregory's University that our own Michael Scaperlanda has been named the University's 16th President.  Here's a bit from the press release:

. . . University of Oklahoma’s President David L. Boren praised the selection, noting that Scaperlanda is an excellent choice to lead St. Gregory’s.

“Scaperlanda’s vast leadership experience coupled with his passion for St. Gregory’s mission, commitment to excellence, tireless work ethic and effective communication skills bode well for St. Gregory’s future,” Boren said.

Reacting to the appointment, Oklahoma City Archbishop Paul Coakley said, “Michael Scaperlanda is a great choice to lead St. Gregory’s University at this time. Under his leadership I am confident that the University will thrive providing students with the intellectual, moral and spiritual formation crucial to living joy-filled lives oriented toward the common good.” . . .

Congratulations, Michael!

Saturday, May 14, 2016

What the Future Holds: Why the Little Sisters of the Poor Case Was Necessary and Why Victory Is of Such Vital Importance

By John M. Breen

For those who had any misgivings about the Zubek case currently before the Supreme Court, this story leaves no doubt as to why the Little Sisters of the Poor litigation was necessary and why victory in that lawsuit is so important.  (The Roman Catholic Diocese of Albany's press release on the lawsuit appears here).

The "model language" of one mandate from the New York Department of Financial Services requires insurers of individual and small group health plans to provide coverage for "therapeutic" and "non-therapeutic" abortions.  The plaintiffs allege that a second, previously undisclosed mandate also requires coverage for abortion "under the rubric of 'medically necessary' surgery."

The actions of New York's DFS are an example of the direction that these matters will take in the future: mandated insurance coverage for surgical abortion by Catholic and other religious employers who object to providing any support for or participation in the procedure.  At some point in the near future will come the mandate that the procedure actually be performed in Catholic hospitals and other institutions that object.  These mandates will be created through unelected administrative bureaucracies since they would not survive public scrutiny through the democratic process.  Thus, the losers in all of this are not only religious institutions and people of conscience, but all those who value democratic government, not to mention the unborn.

Friday, May 13, 2016

If conditions attached to Spending Clause legislation must be unambiguous, how can an agency's new interpretation of a concededly ambiguous regulation ground threatened loss of funds?

By Kevin C. Walsh

Surely someone out there knows the answer to this question that's been bugging me since the Fourth Circuit's decision in its Title IX transgender access to sex-segregated bathroom case, G.G. v. Gloucester County School Board.

Here's a Twitter version of my bleg from April 20: "Q for admin-law mavens: How square Auer deference re: Title IX bathrooms w/ Spending Cl requirement that conditions on funds be unambiguous?" 

In something closer to plain English:

Congress does not have the power to tell local school districts how to provide access to their boys' and girls' bathrooms and locker rooms. But Congress can get this power by imposing conditions on the use of federal funds provided under the Spending Clause. Congress used its Spending Clause authority to pass Title IX, which prohibits sex discrimination by entities that receive Title IX federal funds. As part of the Title IX program, the federal government promulgated a regulation that explicitly allows Title IX fund recipients to have separate bathrooms for boys and girls as long as the facilities provided one sex are comparable to those provided by the other. This regulation does not speak to the question of how to provide access to sex-segregated bathrooms for schoolchildren whose gender identity does not correspond to their biological sex. But in a new guidance document, the Department of Education and the Department of Justice have said that Title IX fund recipients must provide access to sex-segregated bathrooms consistent with each student's gender identity, regardless of whether that gender identity is consistent with a student's biological sex. 

Suppose a school that receives Title IX funds does not follow this guidance document. Can the federal government withdraw the school's Title IX funding? 

One possible answer is "yes." The federal government can impose conditions on funds, and if fund recipients don't want to comply with those conditions, they lose the funds. 

But another possible answer is "no." The federal government can't impose whatever conditions it wants on fund recipients. To be valid, a condition must be unambiguous. And the requirement to allow every student access to sex-segregated bathrooms based on the student's gender identity, regardless of what that gender identity is consistent with the student's biological sex, is not unambiguous. Violating that condition therefore cannot be the basis for withdrawing federal funds. 

What does the law say about these two answers? Any pointers are welcome. 

 

"Wrongful Discrimination? Religious Freedom, Pluralism, and Equality"

By Rick Garnett

Here is a book chapter of mine, which is part of a forthcoming volume edited by Thomas Farr, Jack Friedman, and Timothy Shah, Religious Freedom and Gay Rights:  Emerging Conflicts in North America and Europe (Oxford 2016):

This chapter is a contribution to a volume addressing the tension between claims of equal rights and claims of religious freedom. More specifically, the volume treats the potential for, and the reality of, conflict between the enterprise of promoting equality through anti-discrimination laws and that of vindicating religious freedom by limiting the reach of such laws.

In the United States and in many other countries and communities, this tension is real. It is also unavoidable and ineradicable because of here-to-stay and non-trivial disagreements among people of good will about the foundations and implications of human equality, dignity, and freedom, and also about the appropriate aims and reach of governments’ power. True, it is sometimes declared that, in fact, there is no conflict between religious liberty and non-discrimination law. It is said that claims that there is such conflict — claims that there is conflict presume or present a “false choice.” However, such declarations usually involve an attempt to dissolve the conflict by assuming and imposing a contested definition of or boundary on “real” religious liberty. Certainly, if “religious liberty” does not and cannot include a right, in some cases, to discriminate then there is very little chance of for conflict between religious liberty and anti-discrimination laws. However, religious liberty does sometimes include a right to discriminate in ways that would otherwise violate such laws. The tension between religious liberty and (other) civil rights — between religious liberty and the aspirations of equality legislation and anti-discrimination laws — is, sometimes, real, but this fact is unremarkable and should be unsurprising. After all, the right to religious freedom is not the only civil right the exercise of which sometimes bumps up against the exercise of others.

It is suggested in this chapter that this tension might be lessened, or at least better managed, if citizens and lawmakers thought more carefully about when and why “discrimination” is wrong and about the moral and constitutional limits on governments’ efforts to prevent and remedy, in the name of equality, wrongful discrimination. It will also be proposed that what some have called “healthy secularity” provides a way of thinking about these matters that is attractive, promising, and appropriately appreciative of pluralism.

Like the man says, download it while it's hot.

Thursday, May 12, 2016

On Tushnet, candor, the "culture wars", and taking a "hard line"

By Rick Garnett

Like Paul Horwitz, at Prawfsblawg, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism."  Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way.  (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts.  We agree, though, that Casey was "wrong the day it was decided"!)  

That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:

. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .

Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:  

Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).

He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.    

I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory.  His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement.  In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):

. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .

As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents.  In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .

. . . Which reminds me:  I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives.  But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .

Pope Francis: Europe, "What has happened to you?"

By Rick Garnett

Here is the speech that Pope Francis gave the other day, on the occasion of receiving the Charlemagne Prize.  (The New York Times report is here.)   A bit:

. . . What has happened to you, the Europe of humanism, the champion of human rights, democracy and freedom? What has happened to you, Europe, the home of poets, philosophers, artists, musicians, and men and women of letters? What has happened to you, Europe, the mother of peoples and nations, the mother of great men and women who upheld, and even sacrificed their lives for, the dignity of their brothers and sisters?

The writer Elie Wiesel, a survivor of the Nazi death camps, has said that what we need today is a “memory transfusion”. We need to “remember”, to take a step back from the present to listen to the voice of our forebears. Remembering will help us not to repeat our past mistakes (cf. Evangelii Gaudium, 108), but also to re-appropriate those experiences that enabled our peoples to surmount the crises of the past. A memory transfusion can free us from today’s temptation to build hastily on the shifting sands of immediate results, which may produce “quick and easy short-term political gains, but do not enhance human fulfilment” (ibid., 224). . . .

His concluding paragraph suggests that one of the things that appears to have "happened" is that Europe, because it is losing hope, is not welcoming children:

With mind and heart, with hope and without vain nostalgia, like a son who rediscovers in Mother Europe his roots of life and faith, I dream of a new European humanism, one that involves “a constant work of humanization” and calls for “memory, courage, [and] a sound and humane utopian vision”.[10] I dream of a Europe that is young, still capable of being a mother: a mother who has life because she respects life and offers hope for life. I dream of a Europe that cares for children, that offers fraternal help to the poor and those newcomers seeking acceptance because they have lost everything and need shelter. I dream of a Europe that is attentive to and concerned for the infirm and the elderly, lest they be simply set aside as useless. I dream of a Europe where being a migrant is not a crime but a summons to greater commitment on behalf of the dignity of every human being. I dream of a Europe where young people breathe the pure air of honesty, where they love the beauty of a culture and a simple life undefiled by the insatiable needs of consumerism, where getting married and having children is a responsibility and a great joy, not a problem due to the lack of stable employment. I dream of a Europe of families, with truly effective policies concentrated on faces rather than numbers, on birth rates more than rates of consumption. I dream of a Europe that promotes and protects the rights of everyone, without neglecting its duties towards all. I dream of a Europe of which it will not be said that its commitment to human rights was its last utopia. Thank you.

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