This piece, by Ryan Anderson ("The Right to Be Wrong") is definitely worth a read. He is, among other things, responding to an argument that Hadley Arkes pressed in First Things and elsewhere to the effect that religious-liberty advocates (e.g., the lawyers representing entities challenging the contraception-coverage mandate under RFRA) are wrongly presuming/arguing that religious liberty is about "belief" and that there is a "right" to act in accord with religious beliefs even if those beliefs are wrong. (Ryan's title is taken from Seamus Hasson's book, The Right To Be Wrong, which I reviewed several years ago here.) A number of other commentators -- some have called them Catholic "anti-liberals" -- have made arguments like Hadley's, and I hope they will read Ryan's response. At the very least, it would be a good thing if those pressing the critique that Arkes has been pressing would distinguish between (a) philosophical and theological arguments about the Truth of the Matter and (b) the arguments that are made, and appropriately made, given the givens about the current positive-law landscape, in order to secure the space necessary for religious freedom, correctly understood, to be execised.
Monday, July 7, 2014
Anderson on the "Right to Be Wrong" and Hadley Arkes
Sunday, July 6, 2014
Fr. Snyder from Catholic Charities USA to St. Thomas
The Rev. Larry Snyder, president of Catholic Charities USA since 2005, is returning to the University of St. Thomas (one of his alma maters) to serve as vice president for mission. This is great news for the university. He has done admirable work at Catholic Charities, and he's contributed valuable insights (e.g. here) on how law and policy can help facilitate, and partner with, faith-based and other community organizations to serve and empower those in need.
Originalist Fusionism
Soon I will return to spar a bit with Tom about irony and the barbarian hordes in the thoughtful middle.
But first, here's something for the originalism debates. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.
Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim--i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project--bringing together considerations of original meaning and original intent as both relevant.
Exhibit A: Donald Drakeman's and Joel Alicea's work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings? The authors discuss a case from 1796 -- Hylton v. United States -- which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax's constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and "what to do when the best evidence of contemporary usage points in two directions." The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources -- dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the "foreign Lexicons" of "consolidated" as opposed to "confederated" governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith's definition of a tax in The Wealth of Nations "was probably contemplated . . . by [the] Convention." The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers' intentions. The reason for this focus is best summarized by Justice Paterson: "the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain." And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings. The authors call it original intent as tiebreaker: "when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question 'What were the framers actually trying to accomplish in using this language?' rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?" And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.
Exhibit B: Steve Smith's new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism's complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes:
At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.
We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.
Smith suggests at the end of the piece that it might be good for "some new movement to emerge devoted to the true criterion for constitutional interpretation," and he refers to an unpublished paper of his dealing with a "maker-meaning nexus." I haven't read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.
I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins's writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.
Douthat on Religious Liberty and the Social Contributions of Religious Organizations
Ross Douthat in the NY Times observes that the Hobby Lobby owners' corporate conscience has led to some good things for workers, including a high minimum full-time wage and Sundays off. (Wait: why does Hobby Lobby get to impose its Christian beliefs on its customers who might have a need to do their shopping on Sundays?) Of course, there's a quarrel over how consistently socially responsible Hobby Lobby is. But as Douthat says, "this isn’t just a point about the company’s particular virtues"; most of it is about religious organizations that serve those in need:
The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.
Most of the commenters, unsurprisingly, are having none of it. But, as always ... it's the open-minded middle you have to reach. Not Times commenters.
The religious organizations that reach out beyond their church's members--and as a result are increasingly threatened with regulation conflicting with their beliefs--want "freedom to serve," in the words of the Catholic bishops' religious-freedom fortnight that just ended. Yes, there are tough issues about ensuring full participation of GLBT people, women, and others in society. But the resolution of those issues has to make room for full participation of faith-based service organizations as well.
An excerpt from my own work on "progressive arguments for religious organizational freedom," which fleshes out the same argument with supporting evidence (footnotes omitted):
[I]t is ironic and mistaken for progressives to deny or minimize religious-freedom protection for faith-based service organizations, as the original HHS exemption did. Works of justice, mercy, and service lie at the core of many religious faiths, but especially those that describe themselves as “progressive.” These works also rank among the features that progressives, religious or not, value most in religious organizations.
Thursday, July 3, 2014
Hobby Lobby and the Apocalypse
I have a not-too-long spot on NPR's Morning Edition from today, partially making the case that Hobby Lobby will not bring about radical consequences. On the other hand, Seth Rogen, an expert on apocalypses, thinks it will.
State Law Contraception Mandates and Post-Hobby Lobby Federalism
Susan is correct, of course, that several states (26 by statute and two by administrative ruling according to this from the NCSL; see also this summary from the Guttmacher Institute) require that employers include contraception in prescription drug benefit plans. While some include broad religious exemptions (eg, Texas), others provide no exemption at all (eg, Iowa) or, as in California and NY, an exemption limited in the same terms as the HHS mandate (which I wrote about a couple years ago here). There are ways around such state-law mandates, however, most notably in some circumstances through self-insurance, and part of the impetus for the HHS mandate under the ACA was to require coverage in all employer-provided plans (other than the diminishing grandfathered few or those entitled to the religious exemption) as well as those in the 22 states without a state-law mandate.
Because RFRA does not apply to the states under Boerne, challenges to state law mandates have to rely directly on the Free Exercise Clause of the First Amendment (with little chance of success, of course), state constitutional free exercise clauses, or state RFRAs. Such challenges--including the challenge (cert petition here) I was part of as an associate at Williams & Connolly ten years ago to the California mandate--have been unsuccessful. (One issue from that petititon that I think has never been fully explored is whether the carving up of what is a sufficiently "religious" institution to qualify for for an exemption poses Larson v. Valente Establishment Clause problems, but that has garnered about as much interest from courts as the argument on the other side that Caldor v. Thornton from the same era implies a broad rule that accommodations raise Establishment Clause problems.) Thus, the point made in this LA Times story that not much will change for many employees post-Hobby Lobby and the likely push in some of the remaining 22 states to enact contraceptive mandates.
Perhaps there are some important doctrinal Justice Kennedy-syle federalism-as-protecting-liberty reasons for this post-Hobby Lobby state of affairs (Howard Wasserman raises similar issues here), as well as an example of Rick Hills's "Westphalian" strategy of substituting conflicts over jurisdiction for conflicts over deeply contested moral questions. Justice Kennedy wrote the decision for the Court in Boerne holding that RFRA was not a congruent and proportional remedy for any state (or local government) religious free exercise violations of § 1 of the Fourteenth Amendment (a then much-criticized narrowing of Congress's § 5 power--times change). The federal government remains limited by RFRA in what it can impose on the nation by statute or regulation (see O Centro and Hobby Lobby). The states, however, can ratchet up or down levels of free exercise protection through interpretation of their state constitutional provisions, enacting state RFRAs, or crafting exemptions (or burdens, see Locke v. Davey), free from federal constitutional (see Smith, which Justice Kennedy joined) or statutory (see Boerne) demands.
State Law Contraception Coverage Mandates
One thing I have not seen very much discussion of in the aftermath of the Supreme Court's decision in Hobby Lobby is the question of the continuing impace of state laws mandating contraception coverage. (This is a subject Michael Moreland and I and other have discussed here in the past.)
More than half of the states have so-called "contraceptive equity" statutes. Such statute are different from the ACA in that (1) there is no direct mandate imposed on employers (because of ERISA, they take the fom of insurance regulation requiring that insurance cover contraception) and (2) they do not prohibit cost-sharing. While it is less dirct than the ACA mandate, such laws still have the effect of forcing employers with opposition to contraception to have plans that provide for them.
The ACA mandate made those laws seem unimportant, but given the decision in Hobby Lobby, they may matter again.
Since the federal RFRA does not apply to states, in states that do not have their own version of RFRA, presumably such laws will continue to operate. Although many such statutes have exemptions for religious employers, some of those are fairly restrictive.
Thoughts from Michael Moreland and others?
Dr. Lindsay's Huff-Po and religion as an explanatory variable in religious accommodation cases
At first knowing of him only what I read in his piece, it came as something of a surprise to me to learn that the author of the Huff-Po* raising Hobby Lobby-based "concerns about the compatibility between being a Catholic and being a good citizen" has legal training. There is little legal argument and the piece describes as a "fiction" the quaint contention that the Court's application of a federal statute involved "upholding secular law." Yet Dr. Ronald Lindsay has not only a JD (from UVA), but also a PhD (from Georgetown). And he successfully practiced law for a long period of time.
Dr. Lindsay's full-time job now appears to be running an organization designed "[t]o oppose and supplant the mythological narratives of the past, and the dogmas of the present." As Dr. Lindsay has been carrying out this mission for a while, it is peculiar that he describes his loaded question ("Is it appropriate to have six Catholic justices on the Supreme Court?") as "uncomfortable." Surely this question is not uncomfortable for him. His Huff-Po is an organic outgrowth of the culture in which he lives; writing it fits in perfectly with his day job. Given Dr. Lindsay's background and knowledge, what is most uncomfortable is not his question, but his apparent uninterest in actually advancing and arguing for an explicit answer in his Huff-Po.
For whatever it's worth, as a descriptive matter, the Catholic Justices' Catholicism cannot be entirely irrelevant to how they rule. But the way in which Catholicism may or may not influence each Justice differs from person to person, and scholars of judicial behavior have generally not found it useful to use judicial religious identity as a variable in building their models. There are other, stronger influences that matter much more (like ideology).
Interestingly, Hobby Lobby may be one kind of case in which the religious identity of judges and of parties may be a useful explanatory variable, although not confirmed at the Supreme Court level. The most detailed empirical examinations of this issue that I am aware of are Greg Sisk's and Michael Heise's analyses of lower-court decisions. I believe their most recent paper (Greg can correct me if I'm wrong) is Ideology "All the Way Down"? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. 1201 (2012). That paper addresses Establishment Clause cases. An earlier paper with co-author Andrew Morriss addresses religious accommodation cases. See Gregory C. Sisk, Michael Heise, & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004). I am uncertain whether their analysis has been supplanted by later analyses, but here is a summary of their findings as of 2004:
The vitality of religious background to a more complete understanding of judicial decisionmaking is made abundantly clear by the findings of our study, at least for disputes involving the very topic of religion and the place of religion in public society. In our study, religion-based variables proved to be steady influences on judicial disposition of religious freedom claims, emerging as statistically significant across multiple models and independent of other background and political variables commonly used in empirical tests of judicial behavior. Indeed, religious affiliation variables—both those of judges and of claimants—were the most consistently significant influences on judicial votes in the religious freedom cases included in our study.
In analysis of demands by religious claimants for exemption from governmental rules or regulations under the Free Exercise Clause of the First Amendment, together with related statutory, free speech, and equal protection claims, Jewish judges and judges from Christian denominations outside of the Catholic and Mainline Protestant traditions were significantly more likely to approve of such judicially-ordered accommodations, while free exercise claimants from Catholic and Baptist backgrounds were significantly less likely to succeed in pressing such claims. In evaluating judicial resolution of challenges to governmental interaction with religion under the Establishment Clause of the First Amendment, Jewish judges were significantly more likely to conclude that governmental interaction with religion breached the figurative wall of separation between church and state. In the particular context of education, Catholic judges were significantly more likely both to respond favorably to religious claimants seeking exemption from governmental rules or regulations (that is, more approving of Free Exercise Clause objections to government controls) and to resist challenges to governmental acknowledgment of religion or interaction with religious institutions (that is, less approving of Establishment Clause claims).
Shifting from a focus upon particular types of claims to analysis of four integrated theoretical models of the Religion Clauses of the Constitution—models that we christened Pro-Religion, Anti-Political, Judicial-Restraint, and Pro- Secularist—the steady influence of religion-based variables again emerged in our study. No significant variables were found among judges who adopted an approach toward the Free Exercise and Establishment Clauses that was most approving and accommodating of religion (the Pro-Religion Model) (although Catholic affiliation for judges closely approached significance). Nor did those judges who fit the antithetical model of insisting upon secularism in public life (the Pro-Secularist Model) fall into any significant patterns (again with the near and negative exception of Catholic judges). However, Jewish judges along with judges from non-mainstream Christian backgrounds were significantly more likely to approve of judicial intervention to overturn the decisions or actions of the political branch that either refused to accommodate religious dissenters or provided an official imprimatur upon a religious practice or symbol (the Anti-Political Model). Likewise, judges from these same religious backgrounds were significantly less likely to adopt a judicial restraint approach (the Judicial-Restraint Model), that is, these judges were less likely to defer to governmental actions that severely impacted religious minorities or that officially acknowledged religious traditions.
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* A "Huff-Po" is kind of like an op-ed, but in partaking more of assertion than argument it exhibits one of the "characteristics of the larger intellectual/political culture of which the HP is an expression."
Dietrich von Hildebrand on "religious pluralism"
As we move forward following the Court's decision in Hobby Lobby, it's important to be clear about what we mean if we think, as many still do, that the answer to our day's social problems amounts to no more than a consensus that values pluralism. Consider, by contrast, the judgment of Dietrich von Hildebrand (1889-1977), whom Ven. Pope Pius XII described as nothing less than "a 20th century doctor of the Church" (Pope Saint John Paul II and Pope Benedict XVI had similarly admiring things to say about von Hildebrand's work as a theologian):
Insofar as cultures are concerned, multiplicity has a value, just as does the pluralism of national characters. When, however, it comes to metaphysical or ethical truth -- and especially when it comes to religion -- any pluralism is an evil. Evil, too, are the many fluctuations in the life of religion that occur in history. Unlike cultural pluralism, religious pluralism is in no way a sign of life, but rather a symptom of human fraility and insufficiency. Great metaphysical and ethical truths, and the true religion itself, are destined to take root among men. Here the 'oughtness' of assuming social reality gives to their aliveness a special significance. It represents a descending of Christ into the soul of the individual person and the erecting of His Kingdom in the interpersonal sphere. It is the dimension of Christ's victory that He predicted in saying: 'Where two or three are gathered together in my name, I am in the midst of them.' To supplant truth in its transcendent existence with a merely social reality is to imprison man and history in a desolate immanentism. On the other hand, the incarnation of transcendent truth in man and history represents the victory of transcendence over the purely immanent.
Trojan Horse in the City of God: The Catholic Crisis Explained 103-04 (1967; 1993).
John Cardinal O'Connor's Foreword to the 1993 edition of von Hildebrand's book adds the following: "It is against secularism that von Hildebrand inveighs most strongly and consistently. It is the invasion of secularism into the life of the Church that he sees as most analogous to the invasion of Troy by the Athenians. 'To be sure,' he says, 'secularization is an evil primarily because it implies an apostasy from Christ, and it is for this reason that we fight it on every page of this book'" Id. at xi. The late Cardinal O'Connor's Foreword concludes with these words about what the Church should be doing in every age: "I hope that [readers] will take special note of Dietrich von Hildebrand's quoting John Henry Cardinal Newman about the Church: 'She holds that unless She can, in Her own way, do good to souls, it is no use Her doing anything.'" Ibid.
By the way, von Hildebrand was sentenced to death (in absentia) by the Nazis for publishing a weekly opposition newspaper with the assistance of the great Austrian Chancellor Engelbert Dollfuss, who for his part was assassinated by the Nazis in 1934.
Wednesday, July 2, 2014
More Comments on Irony and Tragedy
Marc and I are engaged in a fun (for us, at least) dialogue about the "tragic" versus "ironic" approaches to religious liberty questions and probably other legal/social disputes too. I've described the ironic approach, in the tradition of Niebuhr's The Irony of American History, as calling for humility and self-examination even in our most strenuous arguments against opponents, because our virtue can easily transmute into vice, while self-examination may make us see commonalities with, or virtue in, our opponents. Marc, in turn, has defended the tragic approach laid out in his fine book, on the ground that it takes more seriously the often-unbridgeable gulfs between beliefs and ways of life that contend with each other.
Marc also argues that the ironic approach reflects a certain pretense of "knowing," a "clever detachment" that stands in judgment over the parties embroiled in the conflict. On this last point, a friend of mine who's a student and fan of Niebuhr's work sent me some thoughts that laid out ideas I had only barely expressed in my response:
[T]he ironic disposition cannot be separated from the movement of repentance in Niebuhr's work -- that is, repentance is that movement in which the self transcends itself, its past, the causes to which it has pledged allegiance and see itself and this past and these commitments under the judgement of God. This is not clever detachment. Viewing itself and its past and its commitments under the judgment of God, it is enabled to see how virtuous intentions have gone astray as well as to discern the commonalities of sin between itself and its enemy. This emphasis on repentance is consistent throughout the two volumes of [Niebuhr's major work, The] Nature and Destiny [of Man].
Now, I'm sure that some people would be suspicous that when the self "transcends itself, its past, [and] the causes to which it has pledged allegiance," it is not actually "see[ing] itself ... under the judgment of God" but is instead asserting a kind of radical autonomy. Catholic theologians accused Niebuhr of favoring the autonomous self over the moral guidance of the Christian community. I'm definitely not an experton these things, but I tend to see that criticism of Niebuhr as overstated. However, let's set that debate aside. The relevant point, which my friend expresses better than I had, is that in calling for self-examination and humility, the "ironic" thinker applies--should apply--the same demand to himself. The kind of "ironic" disposition I'm describing, then, does not claim detachment--or intellectual or moral superiority, except insofar as moments of self-examination and repentance can lead to morally better behavior.
Along the same lines: Marc used an observation from Tom Shaffer to describe the ironic thinker's detachment and perceived superior insight. My friend restates that quote and takes the analogy in an interesting direction:
"Shaffer [Marc wrote] once described irony as 'what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.' The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining."
The self in the ironic disposition is not an observer, but one of the two young lovers, who perhaps at a later date smiles wryly at a moment of innocence that was in actuality not quite so innocent as imagined at the time. As he has since discovered that, as a young man, he was still too young to know the full meaning of loving another human being. The movement of repentance does not negate responsibility for the self's obligations. In so far as he reflects upon this past moment of innocence, he does so in order to gain a greater purchase on the meaning of love and the full meaning of loving another human being. Not to negate that obligation or to be an observer who stands outside of it.
I'm piling on with the words here (sorry Marc!), but I thought that my friend's comments were worth sharing as part of the discussion.
I wonder if "irony," in our current circumstances, bespeaks too much of Letterman or Kimmel snark. Is there a better term to refer to the disposition I've tried to describe?
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