Thursday, January 9, 2014
I'm delighted to report that Prof. Cecelia Klingele (Wisconsin), whom we at Notre Dame are honored to be welcoming for the semester, will be guest-blogging for a while here at Mirror of Justice. Prof. Klingele is a scholar and expert regarding matters of criminal justice administration, sentencing, criminal law, and related matters.
Here , by the way, is a really interesting story about her, and her background. Welcome, Cecelia!
Wednesday, January 8, 2014
Shortly after the Little Sisters of the Poor lost on their motion for a preliminary injunction in district court, some of the Sisters were being congratulated on their “win.” Those congratulating them were familiar with the case based on a Baltimore Sun story about the district court’s decision. This story incorrectly asserted that the district court had determined the Little Sisters to be “exempt” from the contraceptives mandate. It opened: “A group of Catonsville nuns who claimed that the new federal health care law’s contraceptive coverage requirement would violate their religious beliefs are actually exempt from the mandate, a U.S. district judge concluded Friday.” (The same story later ran in a different venue under the headline “Despite favorable ruling, Maryland nuns groups still fighting birth control coverage.”)
This misunderstanding was unfortunate not only because it was incorrect, but also because the incorrect idea the Little Sisters are exempt or exemption-eligible has spread. Both the initial incorrect assertion and its spread are understandable, however, because the government has advanced this incorrect idea before the Supreme Court.
To be clear: the Little Sisters’ case exists only because their homes are nonexempt organizations under the current regulations. The government has offered what it calls an accommodation. But a key legal feature of this accommodation is that it offers nonexempt organizations an alternative path for compliance rather than an avenue for exemption. This is plain on the pages of the Federal Register, in which the government explains that “an eligible organization is considered to comply with [the ACA’s preventative services for women provision] and the companion provisions in ERISA and the Code if it provides to all third party administrators with which it or its plan has contracted a copy of its self-certification.” Nonexempt organizations who avail themselves of the accommodation remain nonexempt, but they are no longer subject to penalties because they have complied to the government’s satisfaction.
Reporters and commentators on the case may be forgiven for thinking that the government’s regulations actually provide that signing and providing the government-required form counts as opting for an exemption rather than as complying. In its response to the Little Sisters’ emergency application at the Supreme Court, the government has characterized the form at the center of the accommodation for nonexempt groups differently from its regulations—as securing an exemption. The government has asserted, for instance, that “with the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court—an exemption from the requirements of the contraceptive coverage provision.” Resp. at 21 (emphasis added). This matches characterizations elsewhere in the government’s response. See Resp. at 2 (asserting that “the employer-applicants here are eligible for religious accommodations set out in the regulations that exempt them from any requirement ‘to contact, arrange, pay, or refer for contraceptive coverage’”) (quoting 78 Fed. Reg. 39,874, 39,879 (July 2, 2013) (emphasis added)); Resp. at 3 (asserting that this case is “about whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks”) (emphasis added); Resp. at 30 (“[A]pplicants’ religious exercise is not substantially burdened by the requirement that they sign the certification form expressing their religious objection to contraceptive coverage in order to exempt themselves from the contraceptive-coverage provision.”) (emphases added); Resp. at 32 (setting forth allegedly analogous situations in which religious objector need only “sign a certification form in order to secure the religion-based exemption he sought”)(emphasis added).
The distinction between an exemption (which is available to churches and their integrated auxiliaries, but not the Little Sisters of the Poor’s homes) and an accommodation (which is available only to certain nonexempt religious nonprofits) is central to the regulatory structure erected by the Administration. Interestingly, the government’s filings in the lower courts drew a clearer distinction between these two categories of exempt employers and nonexempt but accommodated employers. One wonders how much of the change at the Supreme Court is due to a change in the lawyers doing the writing and how much is due to the lower court analysis.
The distinction between exempt and nonexempt but accommodated employers is not merely semantic. The express purpose of distinguishing the two has been to ensure that employees of the accommodated but nonexempt employers (in contrast with employees of exempt employers) receive the required contraceptive coverage in connection with their employers’ plans. The government declined to extend the religious employer exemption to groups like the Little Sisters of the Poor, but instead created an alternative path to compliance, because it wanted its rules for these organizations to serve “two important policy goals.” 78 Fed. Reg. 39,872. Only one was religious accommodation. The other was to “ provide access to contraceptive coverage without cost sharing.” Id.
Although the government’s characterization in its Supreme Court response does not match the government’s characterization in its regulations, it appears that many reporters and commentators have been relying on the court filings instead of the regulations. Indifference to the actual regulations is more readily justified for reporters without formal legal training than for legal commentators skilled in legal research and analysis. A simple google search can bring up the regulations, and the distinction between an actual exemption and the arrangement for nonexempt religious nonprofits is discussed in the Little Sisters’ litigation filings.
It was only a matter of time before this sort of thing was bound to appear, though perhaps it is somewhat disappointing to see it in the pages of US News and World Report. The specific claim seems to be that by granting an emergency stay in the Little Sisters of the Poor case, Justice Sotomayor is waging a "war on women" because she is imposing her Catholic views on the rest of the nation in violation of the law. But that claim is buried within lots of other mud, and I'm afraid I can't do justice to it without letting much of the rest hatch out:
The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year's Eve in Times Square. Or maybe she's just a good Catholic girl.
The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let's be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing….
Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if "you" are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor's stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.
Catholics in high places of power have the most trouble, I've noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can't know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women's rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.
Now, as it happens, I am Catholic. And, as it also happens, on the legal merits, I am persuaded that the statutory argument in favor of the Little Sisters of the Poor as to the issue of accommodation of non-exempted nonprofits is strong--stronger than the arguments the government advances. I also believe that a strong free exercise clause claim can be made in light of the individualized exemptions that have been meted out, though to date this argument is generally not being made. These are all legal claims, and so to the extent that any judge agrees with these claims, it would seem to me that they are putting the law first in ruling as they do. Others disagree with my legal views, and they, too, are putting the law first. They are acting and speaking appropriately about their views of the law--in good faith and by their best lights. I think it is a terrible error to believe that anytime a person disagrees with one's legal views, the reason must be that they are acting in bad faith.
I will say that outside of the legal fight, and as to larger political questions, I do not see why exempting the members of "a nunnery" (as the author so tenderly puts it) from the compulsion to be provided with free access to contraception would constitute a Catholic war on women. I am informed that the members of the Little Sisters of the Poor are women. They seem not to want these products. I don't believe anybody is waging a war on anybody else; it degrades the horror of war to speak in these terms. And yet, if anyone is conducting a hostile campaign against women in this particular case, it is those seeking to compel these women to do what they don't want to do.
Furthermore, if the author were even marginally more serious about providing evidence for her claims, she might have investigated how many of the other judges who have granted injunctions in these cases--18 other such courts, by my current count, and more judges than that--are Catholic. If they are all Catholic, is it also her view that they are all imposing Catholicism on the nation in violation of the law? If they are not all Catholic, what explains their legal findings? Are they all imposing their non-Catholic religious views notwithstanding the law? What if some of the judges who granted injunctions have no religious affiliation? Are they also imposing their non-religious views in finding for the Little Sisters? Or is it only when a judge is Catholic that it can be assumed that she is imposing her views? And what about the judges who denied injunctions? Are any of them Catholic? If they are not, are they imposing their views on the rest of us too? If they are Catholic, I suppose one could claim that they are the good sort of Catholic—Catholics like Nancy Pelosi, as the author puts it--judges who don't impose their views at all. Still, it would be useful to have this information in order to assess the cogency of the claims.
I recognize that for people who write columns like this one, arguments of this sort are not likely to be persuasive. Indeed, once Ms. Stiehm identifies the source (me), she will surely dismiss out of hand anything that follows without bothering to read it. That is regrettable, but it follows directly from the reality that Ms. Stiehm is not really interested in law or argument at all. She's interested in rhetoric; unfortunately the rhetoric that interests her is sloppy and misinformed.
Here is a different uncomfortable reality that columns like this should compel us to face. The long history of American hatred of Catholics is alive, and well, and flourishing. It is kept in fine and proud form by people like this, and given space to breathe in all kinds of prominent venues. It will intensify in the months and years ahead. Dark times are coming.
Tuesday, January 7, 2014
The importance of "moral anthropology" for the enterprise of law is a theme that many of us, including me, have returned to time and again (and again and again) here at MOJ. (It was the subject of one of my very first posts, nearly ten years ago!). Over at Public Discourse, Nathaniel Peters has a book review, "Theology, Anthropology, and Economics" that puts this theme at center stage.
He is reviewing "Papal Economics: The Catholic Church on Democratic Capitalism from Rerum Novarum to Caritas en Veritate", by Maciej Zieba (link). Here is an excerpt from the review:
[T]he true measure of a government is whether it respects the rights of its citizens and cares for their needs. A healthy democracy, Zieba argues, must be founded on right anthropology. Five truths in particular serve as an “anthropological minimum”: the certitude that the actors in society are equal; the conviction that the majority of people will behave rationally; the conviction that people are prepared to distinguish good from bad, and that the majority is apt to choose the good; the pursuit of the common good as theraison d’être of the political community; and generosity toward minority groups.
In other words, “the foundation of liberal democracy is something that liberal democracy itself cannot guarantee.” It is the truth, particularly the truth about human nature, that provides the foundation for freedom and justice, which must be oriented toward what is truly good and human. A free economy, a just government, and a sound moral culture serve as the three pillars of a flourishing society. All of them, in turn, must be founded on and reflect sound anthropology.
My friend Noah Feldman (Harvard) has an op-ed piece up at Bloomberg called "If Businesses Can Talk, They Can Pray." It is about the HHS-mandate cases the Court has taken up (Hobby Lobby, etc.) with an eye back to the Citizens United decision. Feldman writes:
Start with corporations, which logically shouldn’t enjoy religious liberty rights any more than they enjoy free speech rights. The Framers would have laughed at the Citizens United decision that gave corporations carte blanche to make campaign donations, because to them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders’ selfhood. James Madison and the other fathers of the First Amendment would have found it similarly absurd to say that corporations have a right to religious freedom.
I do not agree that "logic" takes us where Noah thinks it does. I would put the matter differently: Do constitutional protections for the freedom of speech and the freedom of religion place any limits on what governments may do to corporate entities, associations, communities, and groups? And, it seems to me, the answer to this question is clearly "yes." Identifying those limits and enforcing them in particular cases are important and challenging tasks, but the claim that "logic" dictates a rule that regulations of corporations get a First Amendment "free pass" is not persuasive.
Noah also suggests the following solution to the HHS-mandate debate:
Here the optimal solution is for the Obama administration to acknowledge that the ACA requires all insurers to provide contraceptives as part of the price of doing business. Why would this work? Because those employers who won’t pay for contraception on religious grounds can preserve their consciences by knowing that they really aren’t paying for it. Instead, the state is making their insurance companies do so, at no cost to them. This should be morally satisfactory -- and neither the law nor the Constitution requires more.
I agree that "the Constitution" probably requires no more than this, though it would seem to rule out "self insurance" by religious entities that object to the mandated coverage.
To all those who care about Catholic education and expanding opportunities for underprivileged children (as we all should), Fr. Tim Scully, C.S.C., of the University of Notre Dame is a hero. Check out this interview with him, conducted by Kathryn Lopez, called "Educating the Least of These." A bit (that might be relevant to law-teachers, too, as the new semester starts!):
ACE’s spirituality is based first and foremost on the person of Christ the Teacher — we are constantly inviting our teachers to come to a deeper understanding of Christ in his most common day-to-day identity, which was a teacher. We invite our ACE teachers to reflect, and try to model their own service, on such characteristics of Jesus’ teaching as: his passion, his integrity (there was no gap between what he taught and how he lived), the way he loved and gave his life for those he was teaching, his perseverance through the inevitable difficulties and disappointments of teaching, his willingness to reach into the daily lives of those whom he taught (like in the parables) and help them see the deeper meanings of life, and ultimately to recognize God at work in their daily lives. . . .
In my view, Prof. Perry Dane (Rutgers-Camden) is one of the more thoughtful and intriguing law-and-religion scholars in the country. Here's a new piece of his, called "Christmas":
This paper, which is still in a very early form, looks again at the recurring problem of Christmas and the Constitution. Conventional Establishment Clause analysis of Christmas is built on three propositions: First, Christmas is in a sense two holidays: a Christian celebration of the birth of Jesus, and a secular winter holiday. Creches and the like are symbols of the religious Christmas, while trees and Santa Claus are among the trappings of the secular Christmas. Second, government participation in celebrating the secular Christmas is unproblematic. Third, celebrating the religious side of Christmas does risk violating the Constitution, but embedding the religious element in a secular context can mitigate the infirmity.
Much of the criticism of current doctrine has honed in on the third of these propositions. I want to focus, however, on the premise of a "secular" Christmas on which the first two propositions of the doctrine are built. My argument is that the notion of a secular Christmas, and the assertion that the tree and Santa and so on are secular symbols of that secular Christmas, are both deeply problematic. More specifically, I argue that Santa and the like play a complex, rich, and tension-filled role in the "religious economy" of Christmas, and that we cannot begin to tackle the constitutional problem of Christmas until we unravel that complexity. Santa and the tree, even if they carry little or no propositional content, are "religious capital" - "cultural accessories" to the religious meaning of Christmas. And, paradoxically, they can also, under certain circumstances, take on downright anti-religious meaning. When the government adopts these objects and symbols and practices for itself, the effect is religiously and constitutionally complex. The solution to these problems, however, is itself neither obvious nor straightforward.
Check it out!
MOJ readers are probably familiar with the conversations/arguments/debates swirling around over the extent to which "the Enlightenment", or "liberalism", or "rights talk", or "individualism", or "libertarianism" (a) is or is not responsible for what ails us and (b) is or is not compatible with Catholic social teaching and moral anthropology, correctly understood. For a taste, check out Patrick Deneen's "Unsustainable liberalism" (here) and Robert Miller's "Eudaimonia in America" (here). (My own views, for what it's worth, are closer to Miller's on this one.) Here's another contribution that caught my eye: Jason Jones and John Zmirak's "The Enlightenment is not Enough" (at Aleteia). And no, I'm not endorsing everything in the piece. It does seem to me, though, that criticisms of "liberalism" need to concede its strengths and accomplishments just as defenders of it need to similarly concede its failings and weaknesses.
The question whether what our friend Michael Perry calls the "morality of human rights" requires a theistic foundation -- which is, of course, an entirely different question from the one whether one needs to be a theist to embrace or act in accord with that morality (one does not) -- has often been discussed here at Mirror of Justice. Michael Perry has written about the issue, of course, as have others, including Nicholas Wolterstorff. In my review of the latter's relatively recent book, Justice, I wrote:
What makes it the case that a human being is the kind of thing that can be wronged in the way that justice forbids? It might be tempting to join thinkers like Richard Rorty in shrugging off the “outmoded” task of “rights foundationalism” and rely instead for the preservation of our “moral subculture of rights” on “sad and sentimental stories” that evoke “sympathy for the feelings” of others.
For Wolterstorff, this will not do; an “account of human dignity adequate for grounding rights” is required. He proposes, however, that no secular account is possible. A theistic account, however, is available: In a nutshell, the “relational property of being loved by God”—a property that has nothing to do with human capacities (which are not, after all, shared or distributed equally)—is what gives a human being great worth.
The conclusion and the heart of the argument will—as my colleague Paul Weithman has suggested—be familiar to all parents and children who have read The Velveteen Rabbit: “Natural human rights,” he concludes, “inhere in the worth bestowed on human beings by that love” and “are what respect for that worth requires.”
Finally, the “unsettling question”: If belief in what is required to ground human rights is destined to wane, then what? Our “moral subculture of rights” might well be pervasive, but it is also “frail.” If “secularization” is the expected course of things, then it is not clear how confident we can be in the future for justice. “This is,” Wolterstorff admits, a “melancholy conclusion, . . . if one believes the secularization thesis. . . . I do not believe the thesis.”
In this recent piece, "The Confidence of Jerry Coyne", Ross Douthat addresses the question, too. Here is a taste:
The point that critics make against eliminative-materialism, which Coyne seems not to grasp, is that it makes a kind of hard-and-fast moral realism logically impossible — because if the only real thing is matter in motion, and the only legitimate method of discernment the scientific method, you’ll never get to an absolute “thou shalt not murder” (or “thou shalt risk your life on behalf of your Jewish neighbor”) now matter how cleverly you think and argue. This is not necessarily a theistic objection — it’s one of the issues raised in Thomas Nagel’s controversy-generating book, which explicitly keeps religious ideas at arm’s length — and for that matter there are forms of theism that need not imply moral realism, and Euthyphro-style objections to the union of the two. But I don’t think those of us who still embrace the traditional Western idea of God are crazy to suggest that our cosmology has at least a surface compatibility with moral realism that the materialist conception of the universe’s (nonexistent) purposes seems to lack.
So if you’re going to defend both materialism and modern rights-based liberalism, you have to actually address this point head-on.
This new book, "The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left," by EPPC's Yuval Levin, looks very interesting (and timely). Ramesh Ponnuru reviews it here. A bit:
Yet Levin also notes that conservatives have often sounded much like Paine themselves. President Ronald Reagan explicitly quoted Paine’s wildly unconservative line that “we have it in our power to begin the world anew.” Levin suggests that the practice of conservatism has been more Burkean than its arguments. The arguments have, however, weakened the practice. To use an example Levin does not, President George W. Bush’s confidence that Iraq was fertile soil for republican government owed more to Paine than to Burke. More generally, conservatives have sometimes been attracted to the apparent simplicity of principle rather than paying attention to the details of policy. . . .
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