Tuesday, July 1, 2014
I have a piece at America discussing the decision and its implications. (Can't begin to catalog all the different reactions around the web that are worth reading.)
Among the upcoming challenges will be efforts to repeal, amend, or otherwise limit federal RFRA or its state counterparts. Stay tuned for all those developments.
Here is a link to a conversation I had, with Prof. Elizabeth Sepper (and callers), on the NPR program "On Point." And, here is a podcast about the case that I did yesterday with Michael Moreland, Micah Schwartzman, and Eric Jaffe.
Here are two items discussing the case--a decision that is, consistent with Patrick Brennan's and Tom Berg's observations, quite narrow in scope: first, a podcast that Mark Movsesian and I recorded explaining the holding and offering some thoughts about future issues; and second, a comment on the Liberty Fund site.
I look forward to reading other contributors' reflections.
Skepticism has been expresses in various places about the veracity of what was reported to me about a Chase Bank survey in which employees were asked to go on the record as to whether they are "an ally of the LGBT community." "It would be bad if it really happened," some are saying, "but I don't believe it did." I have, however, received confirmation that it did in fact happen from another employee. He identified himself to me so that I could confirm his identity, but requested, for obvious reasons, that I not disclose his name. Here is the text of his note
I just wanted to confirm the Chase employee survey. It did have the last two options about being an LBGT ally. I have worked for Chase for [here he gave the number] years and was blown away by this question. I have no idea what they were thinking when they asked that. If this is posted,please spare my identity.
I would be grateful if other Chase employees could provide confirmation. It would be especially good if someone has a screen shot of the survey questions.
The philosopher Richard Schuldenfrei once told me about what it was like growing up as a "red diaper baby" in a devoutly Communist family: "We were taught two things: The Rosenbergs were not spies, and it's a good thing they were." I wonder if we're heading for something similar in this case: "The survey questions were not asked, and it's a good thing they were."
Enough already of the hosannas on high in praise of what little the Supreme Court actually accomplished for the good and the true in Hobby Lobby. Joey Fishkin offers a sober perspective here, to which I would be grateful to hear Archbishop Kurtz, president of the USCCB, reply once he's done "thank[ing] God for RFRA" here. Archbishop Chaput's praise (here) is appropriately muted, but is he correct when he asserts that "In our country, no person and no organization grounded in religious conviction should be forced to choose between complying with the law and violating their religious beliefs"? Our criminal law is busy every day denying individuals the opportunity to act on their "religious beliefs," and for that I do indeed thank God. The Church through and since the Second Vatican Council has encouraged licentious thinking about "religious liberty." I offer the corrective perspective of Catholic Tradition here and here.
Monday, June 30, 2014
Well, it is a great honor for a lawyer to advocate and win in the Supreme Court once in one’s career. To win 9-0 is even more impressive. To win twice in two weeks, well that is something. That is also exactly what my colleague here at The Catholic University of America, Mark Rienzi, has done with today’s announcement of the Hobby Lobby case. As was previously blogged on MOJ he argued and won 9-0 in McCullen v. Coakley and participated in and won Hobby Lobby. A write up of his two victories are here and here.
Not to be outdone, my colleague Robert Destro and recent alumnus, Austin Lipari, also tasted victory in the Supreme Court. A write up regarding their case, Susan B. Anthony List v. Driehaus, is here.
The Court holds for Hobby Lobby, with Kennedy joining the majority but also writing a concurrence emphasizing the limits of the decision. The broad issues are resolved in the plaintiffs' favor (rightly in my view): for-profit closely-held corporations can be persons exercising religion, and the coverage mandate with accompaying fines and assessments imposes a substantial burden. The Court dodges the compelling-interest question and decides the case on "less restrictive means": the majority opinion and the Kennedy concurrence ultimately point to the insurer-pays accommodation for nonprofits as a less restrictive means of providing contraception coverage. I think the opinion and concurrence imply that some form of the nonprofit accommodation will be held a permissible solution (perhaps with tweaking about who the notification of opt-out must be sent to.)
Is it too crass to say that I predicted this as a likely result? (OK, guessed right.)
I also think this is a good result. RFRA should apply in the commercial sphere and should be taken seriously, but it also was not meant to--and should not--cut a swath of destruction through general commercial regulation.
Breyer and Kagan decline to join the part of Ginsburg's dissent that denies all religious-freedom rights to for-profit corporations.
Sunday, June 29, 2014
Anyone interested in understanding the most effective techniques for policing people's thinking and enforcing approved beliefs might learn a thing or two from the experience of a friend of mine who works at one of the nation's largest banks. Here is his recent message to me:
I've worked at Chase for the past 11 years. Yearly (sometimes skipping a year though) the bank will send out an Employee Survey to gauge how the employees feel about the bank and the management team they report up to. Every year that's all the questions ever related to: the bank in general and management. But this year there was a question that had many of us scratching our heads.
This is a company wide survey. All lines of business have the same survey. There was a question where it said to check the boxes that were applicable to you. You could select one, more than one, or none. Here it is:
Are you: 1) A person with disabilities; 2) A person with children with disabilities; 3) A person with a spouse/domestic partner with disabilities; 4) A member of the LGBT community.
I thought 4 was a little oddly placed, but oh well. It was the next option that pulled the needle off the record:
5) An ally of the LGBT community, but not personally identifying as LGBT.
What?! What kind of question was that? An "ally" of that community? What's the
alternative if you don't select that option? You're not a ally of the LGBT
community?
This survey wasn't anonymous. You had to enter your employee ID. With the way things are going and the fact that LGBT rights are being viewed as pretty much tantamount to the civil rights movement of the mid 50s to late 60s, not selecting that option is essentially saying "I'm not an ally of civil rights"; which is a vague way to say "I'm a bigot." The worry among many of us is that those who didn't select that poorly placed, irrelevant option will be placed on the "you can fire these people first" list.
The message to all employees is perfectly clear: You are expected to fall into line with the approved and required thinking. Nothing short of assent is acceptable. Silent dissent will no longer be permitted.
Thanks, Marc, for the thought-provoking responses to my questions about irony and tragedy as approaches to understanding religious-liberty (and other) conflicts. Here are a few quick responses. A tragic diagnosis might be more accurate than an ironic one*/ on balance, or for some range of cases—say, the most difficult and vexing ones. That is, there’s surely some point where values and ways of life become incommensurable, no moral appeal to more general commonalities is sufficiently relevant or persuasive, and the only possibility is a pragmatic compromise that heads off worse harms. Both I and (as you mention) Niebuhr acknowledge that. And many of the pro-religious-exemptions arguments made by Berg-Esbeck-Garnett-Laycock-Wilson et al. are self-consciously pragmatic. The question, I think, is how quickly we should reach the conclusion that case-by-case compromise is all there is; or whether moral appeals to a sense of irony or humility can have any significant effect in meaningful cases of conflict. I think you’re saying “No they can’t,” and I have a few reactions.
1. That seems to me too much of a blanket denial. As I see it (and I think as Niebuhr saw it), human beings have highly divergent beliefs and projects stemming from their different situations, experiences, and attitudes; but they also share certain commonalities at more general levels, and they have some capacity to recognize those commonalities. You say that “[t]he opposing sides [in religious-freedom disputes] are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life.” You say that they cannot accept in principle any liberty or equality claims of the other side, because “[t]he other side’s success inevitably detracts from the larger moral vision.”
I doubt that this reflects our constitutional system—even in its reality, not just in its rhetoric—or that it could sustain that system. The same things could be said be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other’s side ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise? I concede that as the cases get “harder,” they become more difficult, and eventually impossible, to resolve through consensus principles; each side will point to a plausible general-consensus principle that supports its position, and the conflict cannot be fully resolved by either principle. But before we reach that point, it seems to me, there are many cases where a lot of people can say, “I disagree strongly with your underlying beliefs or views—I may even despise them—but I can see that you are asserting a legal claim that in principle falls in the same category as mine.”
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