Sunday, July 28, 2013
Programming note
Saturday, July 27, 2013
Baude on the Third Circuit's Contraceptive Mandate Decision
Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot "exercise" religion and that they therefore can have no constitutional free exercise or RFRA claims.
Will asks some good questions about the court's analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions--the distinction between "for profit" and "nonprofit," and the distinction between "religious" and "secular." There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can "exercise" religion. But they do not appear in the majority's opinion.
There is another odd portion of the majority's opinion that Will does not discuss. Will's post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority's argument was surprisingly short:
Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).
Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA.
With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That's not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority's own preferred approach to divining the meaning of "exercise" in the Free Exercise Clause is to engage in what it calls a "historical" analysis. But presumably to divine the meaning of the statutory language, one would begin with the "plain meaning" of the words in the statute. The court uses the words "plain meaning" in the first paragraph, but it does not discuss plain meaning. One might also, depending upon one's views, talk about or maybe just mention legislative intent. Perhaps the usage is the same in the RFRA as in the Free Exercise Clause; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be mistaken.
ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term "tax" as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that "tax" in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term "exercise." See 42 USC s. 2000bb-2(4) (exercise of religion "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief") (emphasis added).
Thursday, July 25, 2013
Bipartisan Effort by Politicians to Enhance Human Dignity -- Yes, It's Really True!
For those who cynically believe that our elected officials are hopelessly divided by party and generally focused on materialistic concerns that fail to consider higher ideals, yesterday's vote in the House of Representatives to restrain surveillance of Americans by the National Security Agency is an example of the best in political deliberation and courage.
As the New York Times reports (the whole article is available here):
The 205-to-217 vote was far closer than expected and came after a brief but impassioned debate over citizens’ right to privacy and the steps the government must take to protect national security. It was a rare instance in which a classified intelligence program was openly discussed on the House floor, and disagreements over the program led to some unusual coalitions.
Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.
I've blogged previously here at Mirror of Justice about why we should be gravely concerned about our government collecting massive amounts of information, from which government agents could assemble a detailed dossier on a person, thus effectively treating all of us as future criminal suspects. Catholic teaching affirms the moral weight of privacy and confidentiality, as a matter of respect for human dignity.
Although the political leadership of both parties -- from President Obama to House Speaker Boehner -- would prefer that we simply fall in line and accept that the NSA's sweeping surveillance is good for us, the vote in the House shows that a growing number of our representatives, responding to a growing number of Americans, are demanding a thorough examination and a full-fledged debate. We will hear more in the future.
Wednesday, July 24, 2013
Garnett on "The Freedom of the Church"
I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church." I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc. Others -- including Michael Moreland, Patrick Brennan, Tom Berg, Steven Smith, etc. -- have, too (and better). Anyway, the paper is called "'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense." Here is the abstract:
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
As Legal Theory king Larry Solum would say, "download it while it's 'hot'".
DeGirolami, on "why standing matters", at Commonweal
Adding to the recent pieces at Commonweal by Michael Perry and me commenting on the Windsor and Perry decisions is Marc's excellent essay, "Why Standing Matters" (and, it does). Here is a taste:
The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly: The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict. Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers. - See more at: http://www.commonwealmagazine.org/why-standing-matters#sthash.1NvZ6LCb.dpuf
Tuesday, July 23, 2013
Congratulations to Robbie George! ...
... on his richly deserved appointment as chair of the U.S. Commission on International Religious Freedom. From the news release:
Dr. Katrina Lantos Swett, USCIRF’s outgoing Chair and an appointee of Senate Majority Leader Harry Reid, announced Professor George’s selection. “I have been honored to work alongside Professor George this past year in the struggle to guarantee religious freedom abroad for people of every faith and shade of belief. He is a true human rights champion whose compassion for victims of oppression and wisdom about international religious freedom shine through all we have accomplished this past year. Our bipartisan Commission is united in its admiration for Professor George’s skills as an advocate and leader of the international religious freedom movement. The Commission is eager to continue its work under his able leadership.”
Some Draft Papers from "Intellectual Property and Religious Thought" Symposium
Readers may remember my posting about the great symposium on "Intellectual Property and Religious Thought" at St. Thomas in April. Papers from it, which are forthcoming in the University of St. Thomas Law Journal, are beginning to appear in draft form on SSRN. The symposium took up a wide range of issues, from the basic question how far ideas can be owned or "sequestered" (Paul Griffiths argued that in the classic early-modern Catholic intellectual tradition they cannot), to issues concerning new technology and social justice (human gene patents, patented seeds and their effect on farmers), to the role of social relationships and communities in innovation and creativity.
Perhaps unsurprisingly, a recurrent theme was that intellectual property, like many other areas of law, has become so obssessed with rights, and with the supposedly magical qualities of market transactions, that it has neglected the common good and the duties/responsibilities that society may properly demand of property holders. A couple papers in this vein have been posted on SSRN:
Alina Ng (MIssissippi College), "Finding Copyright's Core Content"; here's an excerpt from the abstract:
Framing the analysis of copyright laws within consequentialist frameworks as intellectual property scholars have conventionally tended to do, while important in studying the consequences of laws from a socio-economic perspective, has not yielded satisfactory answers to a more fundamental question about the proper content and scope of copyright laws. For many communities and societies with increasing humanistic interests and goals, this question about the law’s proper content is a perennial one. To answer this question, this paper draws from two sources. First, legal theories on natural law, which require as a general rule that man-made laws satisfy an objective moral standard, support a proposition that copyright laws have essential moral content that may be identified through reason. Second, catholic social teachings on the common good, respect for the life and dignity of the human person, and correlation of rights and responsibility offer a framework to inform and shape appropriate copyright laws and policies. This paper proposes that for the progress of science to be sustained, the core content of copyright laws must protect the conditions that contribute towards authentic forms of authorship and support the flourishing and thriving of relationship-oriented communities.
Shubha Ghosh (U Wisconsin), "Duties, Consequences, and Intellectual Property":
Drawing on Amartya Sen's discussion of The Bhagavad Gita and Hindu concepts of justice (niti and nyaya), this paper examines ethical issues related to the construction of intellectual property policy. The author analyzes deontic, or duty based, and consequentialist theories of law within the context of the debate between Arjuna and Krishna in The Gita. With respect to intellectual property, the author proposes a consequentialist theory of intellectual property based on the duties owed by an owner to other persons. This ethical theory is illustrated through the legal treatment of patents on medical diagnostics (Prometheus v Mayo) as well as on through the doctrines of fair use and first sale.
FInally, Bobbi Kwall (DePaul) has posted a written version of her fantastic lunch talk, "Remember the Sabbath Day and Enhance Your Creativity":
Beginning in the twentieth century, researchers examining creativity theory have begun to focus on the relationship between a break period known as incubation and enhanced creativity. This relationship centers around the benefits of unconscious processing. Thus, science now seems to be documenting the benefits of the Jewish Sabbath, an institution dating back over three thousand years, during which time all work-day activities are suspended. This Article outlines the theological predicate of the Jewish Sabbath and surveys the history and development of the Sabbath laws. It then discusses the recent research in the social sciences and provides a theoretical bridge from this research to the significance of the Sabbath for enhancing human creativity.
There's more good stuff to come when the symposium issue appears.
Some Thoughts on Political Psychology and a Couple of Questions for Tom
Reading Tom's thoughtful comment below is a pleasure. He takes each of Michael's and Rick's respective pieces, notes and elaborates on areas of agreement, and proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.
The tail end of Tom's post caught my eye: "In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples' efforts to live out their deep, pervasive commitments--but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions. It is frequently argued that activists for SSM, "aggressive and uncompromising," will never return that sympathy. But the struggle here is, as in so many other cases, to convince those in the middle. My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a "live and let live" approach that will protect traditional religious organizations' ability to maintain their identities."
Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your judgment? More specifically, what is the basis for the judgment that, as a predictive matter, a metaphorical cessation of hostilities on the substantive question of same-sex marriage will, as time goes on, result in a metaphorical cessation of hostilities on the substantive question of religious exemption? It seems to me that in order to reach that conclusion, one would have to believe certain other things, too--things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post.
First, it seems to me that one would need to believe in a theory of what I'll call sympathetic reciprocity in politics (the word "sympathy" appears several times in Tom's comment), which might go something like this: in the realm of politics or policy-making, over the long-term, people remember and respect concessions, and they respond to those concessions with concessions of their own. They reward sympathy with sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi--a 'live and let live' ethic--by observing a policy of sympathetic reciprocity.
Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a 'live and let live' ethic for many issues of public concern; we do accept them for others; and the issues for which we do and do not accept such an ethic are relatively stable but always changing. But is the extent to which we accept such an ethic in turn dependent on a theory of sympathetic reciprocity--that is, on the extent to which those with whom we disagree have previously extended sympathy toward the policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a 'live and let live' ethic more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends--in sum, is it far more dependent on considerations of cultural and political power? I grant that this is a gloomier view than I think is at work in Tom's comment. I'm not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why--on what grounds--he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.
Second, I wonder about the more specific question of the political psychology of what Tom has called 'the middle.' In theory, a legal right ought never to be compromised by political considerations, but in practice, rights are traded off all the time. Yet we would need an extremely acute sense of the middle's opinion of the strength and importance of the rights in conflict in order to predict with confidence whether the middle will believe that trade-offs of rights are warranted, and that a policy of 'live and let live' is justified. A policy of 'live and let live' was viable for, e.g., the Amish in Wisconsin v. Yoder in part because the common feeling (as perceived and articulated by the Court) was that an accommodation in that context could be bought cheaply. The Amish are a small minority that is largely invisible to the middle, and so the price of a 'live and let live' policy was low enough for the middle to display its magnanimous quality. In today's climate, when considerations of equality and nondiscrimination are at stake, I wonder whether the calculus is different: the middle may well believe that the right of exemption is purchased at a much dearer cost.
In fact, I do not have a reliable sense for just how strong a commitment the middle has to the legal right to same-sex marriage. Tolerance is not embrace. I also do not have a reliable sense for how powerfully committed the middle is to religious liberty. On the one hand, there are signs that Americans are increasingly disenchanted with religious freedom, that they believe the First Amendment protects too much, and that of the rights that it does protect, religious freedom is comparatively unimportant. On the other hand, that's only one survey, and, as I say, the degree of commitment of the middle to the legal right to same-sex marriage is also difficult to measure precisely.
The middle is in the middle for a reason: their support or opposition is middling. But there are different degrees of political support, and those gradations will be relevant to predictions about what the middle is likely to do when rights clash. The question I have for Tom on this front is: isn't the viability of the ‘live and let live’ strategy dependent on having a reliably accurate measure of the middle's views? Without that, one may be misled by an attractively upbeat, but perhaps overly sanguine (and how would we know?), political psychology that does not reflect the middle's sense of the world.
The French and American revolutions, "positive" and "assertive" secularism
I'm a bit late posting this -- I had meant to earlier in the month, in the context of the Fortnight for Freedom -- but I think it's still worth reading. Thomas Howard discusses, in "July 4, July 14, and the Religious Question" the important distinction between (a) the American Revolution and the "positive secularism" it produced and (b) the French Revolution and the "aggressive secularism" it brought about.
The discussion echoes, of course, our Pope Emeritus's frequent discussions of (and praise for) "healthy secularity" (which I discuss here and elsewhere).
Mary Ann Glendon and "The Structure of Religious Freedom"
Here, at Public Discourse, is a shorter version of a paper I shared at a recent conference, sponsored by the Notre Dame Program on Church, State, and Society, dedicated to exploring and celebrating the work of Prof. Mary Ann Glendon. Here is a bit:
[C]onstitutionalism depends for its success on the existence and activities of non-state authorities. It should protect, but it also requires, self-governing religious communities that operate and evolve outside and independent of governments. It is a mistake to regard “religion” merely as a private practice, or even as a social phenomenon, to which constitutions respond or react. Instead, the ongoing enterprise of constitutionalism is one to which religious freedom contributes. Human rights depend for protection and flourishing not only on enforceable constraints on government but also on the structure of the social order. With respect to matters of polity, doctrine, leadership, and membership, the autonomy that religious institutions enjoy simultaneously contributes to and benefits from that structure.
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