I came across this piece ("Ryan issues challenge to new generation") in America, and thought it was worth sharing. A bit:
Commenting on the woeful state of national political culture, House Speaker Paul Ryan tried to revive the perhaps flagging idealism of American young people in an address to a bipartisan group of House interns—one that may have also been intended for the ears of exasperated members of his own party. As many in the youthful crowd no doubt struggled to remember or even comprehend the era of bipartisan civility Ryan described, the Speaker assured them it could one day return, and acknowledged that his own deportment in the recent past may not have been exemplary. . .
. . . "I’m certainly not going to stand here and tell you I have always met this standard,” he added. “There was a time when I would talk about a difference between ‘makers’ and ‘takers’ in our country, referring to people who accepted government benefits. But as I spent more time listening, and really learning the root causes of poverty, I realized I was wrong. . . ."
I've received some skeptical reactions to the concluding assertion in my prior post on the Little Sisters of the Poor case that "it's difficult to see how the government wins." The question on people's minds is how the Little Sisters and their fellow petitioners pick up a fifth vote after Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito.
This is a fair question. And the fair answer is that I can't say with certainty (nobody outside the Court can!), but the probabilities look good given the various arguments aired and at work in the case.
I start with the assumption that the Justices would like to avoid a 4-4 split on these cases. They've been dealing with some of these cases on their shadow docket for a while now, and they do not want to prolong uncertainty or perpetuate disuniformity. So they want to find a way to avoid an even split if they can.
Next, any break from 4-4 is most likely to be in petitioners' favor. It's possible that the government loses on substantial burden yet somehow wins on strict scrutiny. But I don't think that's in the cards after considering the briefs and observing arguments.
The government seemingly came in from the lower courts riding high on "no substantial burden," but that position did not fare well in questioning at the Court. Most of the government's arguments accordingly focused on the elements of strict scrutiny: compelling interest and least restrictive means. On these elements, though, the government's arguments and evidence are underdeveloped.
One of the more interesting developments at oral argument was the government's attempt to avoid several less restrictive means by gerrymandering its claimed compelling interest to exclude them. Chief Justice Roberts picked up on this near the beginning of Solicitor General Verrilli's argument. "Your compelling interest," observed Chief Justice Roberts "is not that women obtain contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners, hired by the Little Sisters. In other words, it seems to me you can't say that what you're trying to do is make sure everybody has this coverage. You want to make sure they have it through the program set up by the Little Sisters, and that's what they object to."
Justice Kagan picked up on the government's contraction of its compelling interest as well. One of her questions for petitioners' counsel limited the universe of accommodations available to those that ran through petitioners' plans: "Is there any accommodation that the government would offer that would in fact result in women employees of your clients, or students of your clients, getting health care as part of an employer-based plan or a student-based plan, getting contraceptive coverage? Is there any accommodation that would be acceptable?"
One problem with the government's approach, as Michael McConnell has noted, is that it is "entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest." And another problem, he further notes, is that the government already expects to serve its interests in contraceptive coverage and other preventive services for many other employees outside of the employer-based health system by using the exchanges.
Which brings us to the brief by Douglas Laycock that was mentioned by both Justice Kagan and Justice Ginsburg at oral argument. These Justices invoked this brief's arguments when petitioners' counsel pointed to the government's failure to justify the line that the agencies drew between exempt and nonexempt religious organizations.
At least as of the time of their questions, these Justices appeared to have accepted Professor Laycock's argument that scrutinizing this line to see if the government drew its exemption too narrowly would threaten specific religious exemptions. The gist of the argument is that the government won't provide specific religious exemptions at all if judicial scrutiny of their boundaries would result in willy-nilly judicial expansion.
The argument fails, however, if there is a guiding principle for judges to use in assessing the government's decision on the shape of its exemption. And here there are two.
The first is RFRA itself. When the agencies decided on regulations to implement the women's preventive services provision, they were obligated to follow both the ACA and RFRA. The government obscures this by treating its exemption for churches and integrated auxiliaries as a matter of administrative grace. As Professor Laycock himself recognizes, though, and as Hobby Lobby holds, imposing the contraceptives mandate directly on religious objectors would violate the RFRA.
Even if someone rejects the idea that the exemption for churches and integrated auxiliaries was required by RFRA, nobody can deny that the implementing agencies were at least required to follow RFRA's commands in formulating their regulatory regime. And it is this requirement for RFRA compliance in the regulatory process that provides a second principle for assessing the shape of any resulting exemption. When the government grants a specific religious exemption in its RFRA-governed rulemaking, it has to give a reason for the exemption that it provided. And this is crucial because, at the very least, the government's own reason for giving an exemption can provide courts a principle for assessing the line that the government has drawn between exempt and nonexempt entities.
The truth is that interest-group politics best explains the line drawn by the government. But interest-group appeasement is not an adequate rationale for the agencies to explain their action. So they said something else in the Federal Register, namely that exempt entities were more likely to employ co-religionists. That rationale, however, applies equally to petitioners, who enjoy the Title VII exemption to hire co-religionists, as Paul Clement argued in his rebuttal: "Their original justification for the line they drew, Justice Kennedy, was that the exempted organizations would be more likely to hire co-religionists and, therefore, less likely to have employees who would use the products. My clients equally enjoy the Title VII exemption which gives them the right to hire co-religionists so their original rationale applies equally to my clients. You have to draw a sensible line."
Contrary to Professor Laycock, holding the government to its own rationale when it implements rules in accordance with RFRA by providing exemptions does not pose a mortal threat to specific religious exemptions. It protects against circumvention of RFRA itself.
Which brings me back to the opening question for this post: How avoid a 4-4 split?
To state the obvious, a resolution in petitioners' favor would require at least one of the Hobby Lobby dissenters to join (at least as the outcome) with the four Justices that remain from the Hobby Lobby majority. Given how the government's case collapses once one recognizes the obvious mismatch between the scope of the regulatory exemption and the rationale given for it, the most likely candidates for voting in some way for petitioners are Justice Kagan and Justice Breyer. Their pre-judicial experience with legislation and rulemaking positions them to best appreciate how it has resulted that government lawyers have found themselves stuck defending as legally justified line-drawing that was politically motivated. And as judges, both Breyer and Kagan appreciate how judicial oversight of the administrative process can sniff out the effects of political influence that is insufficiently tethered to the even-handed advancement of actual government interests.
Neither Justice Breyer nor Justice Kagan nor any of the other Justices needs to draw up once-and-for-all criteria for identifying inappropriately gerrymandered religious exemptions. The Justices need only hold the government to its expressed rationale in the administrative record for why it drew the lines that it did.
When RFRA intersects with rulemaking, judges are not RFRA's front-line enforcers. They are, instead, a refuge for religious exercise that is protected by RFRA but that is subordinated to interest-group politics in the administrative process. One workable way to make RFRA operate as intended is for the judiciary to hold the government to its own rationale for the regulatory lines it has drawn.
Few if any academic lawyers have done more to protect religious liberty than Doug Laycock. In his op-ed on Zubik v. Burwell, published in the Washington Post on March 20, Doug writes: "I had never before filed a brief in support of the government in a case about the free exercise of religion." If you haven't already read Doug's op-ed, here it is.
Tonight we Catholics enter the Holiest of Holy Days. We may be tempted, in light of all that's going on in politics (and at the Supreme Court, Kevin Walsh's post notwithstanding), to discouragement or even despair. The republic seems on the brink. And yet, there's this beautiful and enduring Truth:
Pange lingua gloriosi Corporis mysterium, Sanguinisque pretiosi, Quem in mundi pretium Fructus ventris generosi, Rex effudit gentium.
Christ reigns.
Taking a cue from Pope Francis, it may be fair to put some of the blame on us -- well-formed, well-educated Catholics-- that we are now at a point in our country's history when some are at risk of not being able to live according to this truth, without significant financial penalty. As Catholic entrepreneur and philanthropist Frank Hanna memorably remarked at last week's conference on Human Ecology at CUA's School of Business and Economics: "Our problem today is two words: Frank. Hanna." But that surely is a bit of it, right? Most of us don't give credible enough witness to the faith. Christ reigns, always offering to live through us, but all too often, we are lukewarm. Secularization is on the march, and has been for decades, but for all our good arguments (and they are good arguments!), have we been the neighbors we've needed to be, the other Christs we're called to be?
Perhaps by now many MOJers have watched or read Yuval Levin's November 2015 First Things Lecture, published (online for subscribers) in the February issue of the journal, "The Perils of Religious Liberty." If not, do so. The entire thing is superb, as we've come to expect of Levin's work. But I wanted to focus attention on his call--similar to Rod Dreher's, I suppose, but just elemental to good Christianity (N.B.: Levin is Jewish)--to prioritize the shoring up of our families and communities to live our lives as credible witnesses. Levin well understands that our ability to do just this requires that we continue to take the political and legal fight to those who oppose religious liberty rightly understood and who oppose our way of life, but he asks that in doing so we not sell ourselves short. Admittedly, this is not my area of expertise, so I'm not as widely read as many who write (or perhaps read) on this blog, but this is perhaps the best piece I've read on religious liberty - ever.
Here's Levin:
This may be the greatest peril we face in championing religious liberty--the danger that our call for sustaining a space for living out our moral vision might be mistaken for an argument that the sustaining of space for ourselves is itself the essence of our moral vision....
This means we need to see that we are defending more than religious liberty: We are defending the very idea that our government exists to protect the space in which various institutions of civil society do the work that enables Americans to thrive, and we are defending the proposition that this work involves moral formation and not just liberation from constraint. That is an entire conception of the meaning of a free society that goes well beyond toleration and freedom of religion. It is ultimately about the proper shape and structure of American life.
Making that clear--to ourselves and to others--will require an emphasis not just on the principles involved (be they religious liberty or subsidiarity or the freedom of association), but also on the actual lives of our actual, concrete communities. It will require that we turn more of our attention homeward, away from raging national controversies and toward the everyday lies of our living moral communities--toward family, school, and congregation; toward neighbors in need and friends in crisis. It will require us to see that we need to build more than protective walls; we need to build strong, thriving, attractive communities.
The purpose of fighting to defend religious liberty is therefore not only defensive but also missionary: It is to allow the orthodox to meet their obligations, and to show the country a better way in practice. And that better way can only be embodied in real, living communities.
Only such communities can model appealing alternatives to the lonely decadence of the popular culture's ideal of the life of a young American. Only such communities can create meaningful norms of responsibility and commitment that can help their neighbors see why family matters and what it can make possible. Only such communities can demonstrate how meaningful progress can be rooted in collective remembrance rather than just individual desire, ambition, preference, or choice. Only such communities can give rise to a new generation committed to living out the virtues, or seeking out the wisdom of our moral and intellectual traditions, or continuing the struggle for a free society and a more just world.
I pray that we all may enter more deeply into the mystery of our faith tonight, seeking the wisdom and the resolve to ask God, day by day, to transform our families, our communities, ourselves. Christ will always reign, regardless of what happens to this beloved country of ours, but friends, our country needs us...
Tantum ergo Sacramentum Veneremur cernui: Et antiquum documentum Novo cedat ritui: Praestet fides supplementum Sensuum defectui.
Genitori, Genitoque Laus et iubilatio, Salus, honor, virtus quoque Sit et benedictio: Procedenti ab utroque Compar sit laudatio.
Most reports of yesterday's oral arguments in the Little Sisters of the Poor case suggest that the Court is likely to split 4-4. That may be, I suppose, but who knows? In any event, this suggestion of an split understates just how bad of a day it was for the federal government. If Justice Scalia were still on the Court, the stories would be describing the argument as a government rout.
Even with the Court composed as it is, the government's position coming out was substantially weakened from what it was going in. Post-argument, there is less reason to simply assume that the Hobby Lobby dissenters will not recognize the valid religious liberty claims of the nonexempt religious nonprofits appearing yesterday (in contrast with the religious liberty claims of for-profit corporations). Apart from the identity of the nonexempt entities, the big asserted difference between Hobby Lobby and the Little Sisters' case was supposed to be the government's "accommodation," which is just an alternative means of compliance for nonexempt religious nonprofits who can purportedly hand the obligation off to somebody else while washing their own hands of complicity. If nothing else, it became clear that a majority of the Court understood that the government's alternative means of compliance does not make contraceptive coverage under it independent of the nonexempt religious nonprofits.
Here are a few takeaways that I left arguments with yesterday and that still seem right after having slept on them:
Every circuit court that ruled for the government in these cases held that the contraceptives mandate imposed no substantial burden under RFRA. A majority of the Court yesterday seemed unlikely to agree.
The government has characterized its accommodation for nonexempt religious nonprofits as a simple opt out coupled with an "independent" coverage obligation imposed on third parties. A majority of the Court yesterday seemed to reject this characterization.
The government has somehow succeeded up until this point in (A) insisting on contraceptive coverage for employees of nonexempt religious nonprofits that is "seamless" from the employees' point of view, while (B) simultaneously asserting that the resulting coverage is "independent" of the employer's choice. A majority of the Court yesterday seemed to appreciate that makes no sense.
If these observations are right, it's difficult to see how the government wins.
I suppose it's possible, dear readers, that it slipped past your notice that Mirror of Justice marked its 12th (!) blog-versary a few weeks ago. The first "Welcome" post, from Mark Sargent, went up on Feb. 3, 2004. Here it "is":
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
A few things about this blog and us:
1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.
2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.
3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.
4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.
5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)
6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!
Although we decided, a few years ago, to move away from "Comments" boxes (though comments, thoughts, and suggestions from readers are always welcome, and we have often posted them as free-standing posts), I'm opening (or, at least, I am trying to) the "Comments" to this post, because I'd like to get thoughts, reactions, reflections, etc., from readers on how well (or not!) we've done over the past 12 years at living out the "charge" that we set for ourselves 12 years ago . . .
Elizabeth Kirk (here) takes issue with Notre Dame’s decision to award to its Laetare Medal to Joe Biden and John Boehner, and with Michael Sean Winter’s defense of the same (here).
As Kirk notes, Notre Dame’s president, Rev. John Jenkins, C.S.C., has in the past bemoaned the loss of civility in public discourse and the unwillingness of many Americans to actually engage one another in argument. For this kind of dialogue to take place, civility is an indispensable pre-condition.
In a press release announcing the award, Father Jenkins noted the "toxic political environment" in which we live "where poisonous invective and partisan gamesmanship pass for political leadership." In honoring these men, he said that Notre Dame was “not endorsing the policy positions of either [Biden or Boehner], but celebrating two lives dedicated to keeping our democratic institutions working for the common good through dialogue focused on the issues and responsible compromise.”
Kirk rightly questions what kind of contribution to civil dialogue Joe Biden has actually made given the fact that he led the vociferous charge against the nominations of Robert Bork and Clarence Thomas – a move (one might add) that in part accounts for the highly partisan nature of the current fight over Justice Scalia’s now vacant seat.
More importantly, she points out how the decision to award the medal to Biden violates the USCCB’s statement Catholics in Political Life in which the bishops specifically teach that “[t]he Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions.”
The problem in awarding the Laetare Medal to Joe Biden is that since the mid-1980s Biden has been a consistent champion of the abortion license created by the Court in Roe v. Wade. He has also been a proponent of same-sex marriage and stem cell research destructive of human embryos, while his support for freedom of religion (as opposed to a miserly freedom of worship) has been dubious at best.
For these reasons, Kevin Rhodes, bishop of the Diocese of Fort Wayne-South Bend, has openly criticized Notre Dame for its decision to honor Biden (here). It remains to be seen whether Donald Cardinal Wuerl, Archbishop of Washington, D.C., the University’s commencement speaker, will attend the festivities.
As Kirk notes, Winters (quite predictably) tries to discredit both the bishops’ statement and anyone who would criticize Notre Dame’s decision to bestow the medal on Biden by engaging in the very kind of incivility that Jenkins bemoans.
It is perhaps an unwanted conclusion for some (but nevertheless a fact) that there are certain positions on certain issues – such as support for the abortion license – that are simply outside the Catholic pale. While universities (secular and religious) and other public fora should foster genuine engagement on these matters, a Catholic university like Notre Dame should avoid honoring those who seek to advance positions that are inimical to its identity. Notre Dame’s attempt to honor one Catholic politician who supports the legal murder of unborn human life and one Catholic politician who opposes the same under the gloss of support for “civility” cannot help but convey the idea that, for Catholics, the issue isn’t really all that important, and even if it were, supporting abortion is perfectly acceptable so long as one does it with the proper sense of demeanor.
What Winters says is true: "[T]here is more to know about a candidate or government official than their position on abortion." But when a Catholic university knows that he or she supports the legal killing of unborn human beings, it knows enough not to publicly honor that person, even if one might privately admire that individual for other reasons.
Kirk’s whole article is worth reading, but especially her conclusion:
Civility unhinged from its connection with preserving an order (a “civilization”) that allows other higher goods to flourish devolves into a self-righteous tool of political correctness wielded to eliminate disagreement. We should argue with our opponents because to do so pays them the honor of thinking that they have an argument to engage and because it assumes that there is a truth that we both desire to seek. Not addressing the real arguments of one's opponents is a hallmark of the lack of civility. To reduce civil public discourse to a thin façade of sentimental politeness suggests that disagreement itself—no matter how civilly presented—is ill-mannered, unfriendly, and unreasonable. A claim for civility in this sense is merely a bludgeon – albeit sometimes an elegant one – to silence one’s opponents.
Minnesota's assisted suicide proposal was withdrawn by its sponsor during its hearing today, which apparently drew impassioned testimony from both supporters and opponents, according to this report from our local paper. Apparently the sponsor (Sen. Chris Eaton, DFL-Brooklyn Center) understood the opposition as resulting from "misunderstandings" about the legislation, rather than a very clear understanding and rejection of the proposal. She's planning on re-introducing it next year, because "it would be easier to pass if DFLers [Minnesota-speak for Democrats] regained control of the House in November."
