Mirror of Justice

Tuesday, June 5, 2012

Bradley on the HHS mandate

My friend and colleague Gerry Bradley has a worth-a-read essay up at Public Discourse on l'affaire HHS mandate. As he points out, even if this particular fracas dissolves, because the Supreme Court throws out the Affordable Care Act, or Gov. Romney wins the election, or Pres. Obama relents, the debate reflects a deeper, first-principles-level tension between religious freedom and some understanding of political liberalism. He writes:

. . . The ideological commitments that have emboldened the Obama administration about contraception are deeply held. They are held to be very important. They are resilient. They are not limited to the reproductive rights supposedly protected by access to contraception, even when contraception is broadly defined to include abortifacient drugs. These deep convictions about liberty and equality and religion entail trouble for religious liberty, no matter which exit route the present mandate takes. . . .

"Much Ado About Subsidiarity"

By Rick Garnett

Over at Vox Nova, Morning's Minion links to a bunch of posts making the point -- which is quite sound, as Rob Vischer and others have shown -- that "subsidiarity" is about more than devolution, localism, or "small is beautiful," and that it is not reducible to libertarian anti-statism. One of the writers, though -- James Baresel, at The Distributist Review -- goes a bit wrong, I think, and makes some claims about subsidiarity that, I suspect, Morning's Minion would reject, or at least insist be qualified.

It is true, of course, that Catholic Social Doctrine is not "individualistic", in a liberal or libertarian sense, but it's also a mistake to frame it, without qualification, as "communitarian."

"Subsidiarity" is, as Beresel, Morning's Minion, and many others have said, a rich and challenging (for us today) idea. As Russell Hittinger has written, the core of the idea is "the existence of social persons distinct in dignity, reducible neither to the individual nor the state[.]" Indeed, "Catholic Social Doctrine . . . emerged in defense of two propositions: first, that the state does not enjoy a monopoly over group-personhood; second, that societies other than the state not only possess real dignity as rights-and-duties-bearing unities, but that they also enjoy modes of authority proper to their own society." With respect to subsidiarity specifically, Hittinger writes:

[S]ubsidiarity is not a free-standing concept. As a principle regulating and coordinating a plurality of group-persons, subsidiarity presupposes a plurality of such persons, each having distinct common ends,kinds of united action, and modes of authority. It is not, therefore, a question of whether there shall be group-persons, or whether they are efficient or immediately useful to the state. Rather, the question is how these groups stand to one another and to the state. In its negative formulation, subsidiarity demands that when assistance (subsidium) is given, it be done is such a way that the sociality proper to the group (family, school, corporation, etc.) is not subverted. . . . Rendered in Latin as sub sedeo, subsidiarity evokes the concept not only of subordinate clauses in a sentence, but also of auxiliary troops in the Roman legion which ‘sat below’, ready and duty-bound to render service. Hence, it describes the right . . . of social groups, each enjoying its own proper mode of action. While sometimes identified with the word subsidium (help, assistance), the point of subsidiarity is a normative structure of plural social forms, not necessarily a trickling down of power or aid.

The Eighth Circuit on "Substantial Burden"

By Marc DeGirolami

The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom. The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened, citing Muslim beliefs. After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up. On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.” The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score.

Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion. The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up. That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Also important is the issue of “inconsistency.” Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge. The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect). The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden:

[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs.

This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong. But if the Eighth Circuit is right, then these sorts of arguments are going to be viewed skeptically by courts assessing the question of substantial burden under RFRA.

The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).

Two reasons for defending the other guy's religious freedom

By Robert George

Religious liberty scholar and advocate Douglas Laycock has offered both praise for and criticism of the U.S. Catholic Bishops' statement on religious freedom, "Our First, Most Cherished Liberty." Speaking of the document's examples of contemporary threats to religious liberty, Laycock remarks that "it wisely includes the example of state immigration laws that prevent the church from ministering to illegal aliens. This is important both for its own sake and because it shows that serious attacks on religious liberty come from the right as well as the left. The statement says nothing about anti-sharia legislation or widespread opposition to the building of mosques—two more examples of attacks on religious liberty from the right." This is an entirely fair point, and should be taken to heart by the bishops and by conservatives who are (entirely rightly, in my view) concerned about very grave threats to religious freedom coming from the left and from the Obama administration. Rob Vischer has written insightfully in First Things about the dangers of anti-sharia laws: http://www.firstthings.com/article/2012/02/the-dangers-of-anti-sharia-laws. Jennifer Bryson and I have criticized anti-mosque sentiment in an op ed piece in the Philadelphia Inquirer: http://articles.philly.com/2010-09-12/news/24999345_1_religious-freedom-new-islamic-center-american-muslims. Catholics have two reasons to speak out in defense of the religious freedom of Muslims, Jews, Protestants, Latter-Day Saints, and other non-Catholics, as well as their own religious freedom. The first (and more important) reason is simply that it is the right thing to do. Faith and reason bear common witness to the profound truth that religious liberty is a right held equally by all. The second reason is that the denial of religious liberty for any one group erodes the foundations of religious liberty for everyone. If you value your own religious freedom, it is prudent to defend the other guy's religious freedom when it comes under attack. A precedent established by people in, say, Murfreesboro, Tennessee who despise Islam and see it as a pernicious force, may prove very handy to people in, say, San Francisco who have a similar attitude towards Catholicism. (I hope it goes without saying that not everyone in Murfreesboro is hostile towards Islam and not everyone in San Francisco despises Catholicism. By "people" I mean some people, not everyone or even most people in these or other cities.)

Monday, June 4, 2012

Establishment Clause Cross-Winds

By Marc DeGirolami

This is a news report about a hearing before Judge Loretta Preska (SDNY) on the Bronx Household of Faith case, discussed previously here and here. The story may be behind a wall, so I will summarize some of it. Bronx Household of Faith obtained a preliminary injunction and is now seeking a permanent injunction against New York City, which would stop the City from excluding Bronx Household and any other religious organization from equal access to public school facilities.

The City's ground for excluding Bronx Household was that it was engaging in "worship" while other groups using public facilities were not. This rationale was accepted by the majority of a Second Circuit panel (Judge Walker dissented) as not constituting viewpoint discrimination, even though it was bound by the Supreme Court's holding in Good News Club v. Milford Central School that the City could not exclude religious expression. The panel further held that the City had an anti-establishment interest in avoiding the appearance of an endorsement which justified the policy of exclusion of "worship."

The case is now before Judge Preska on free exercise and establishment grounds. Judge Preska seems skeptical in the news report that the City can determine what constitutes "worship" and what doesn't without running into entanglement problems. Traditionally in constitutional law, excessive entanglement has been the third part of the Court's Lemon Test -- a still-viable though much criticized Establishment Clause test. The entanglement prong has always seemed to me to be one of the more important parts of the test but it has faded from significance over the years (though one might argue that a concern about excessive entanglement is what grounds the Establishment Clause component of the Hosanna-Tabor decision).

But Judge Preska's reported questioning suggests that excessive entanglement is where she may mean to focus her decision. If that is how the decision comes down, it will result in the following interesting situation:

The Second Circuit holds that the (appearance of violating the) Establishment Clause justifies the City in excluding "worship."
The District Court holds that the Establishment Clause prevents the City from deciding what "worship" is.

This seems somewhat unstable.

Religious Freedom and Pluralism . . . I Have Seen It!

By John M. Breen

Thanks to Robbie George for posting the letter (here) that he, William Mumma and Mary Ann Glendon wrote in response to the Thomas More Law Center’s criticism of the Becket Fund for supporting the religious freedom of Muslim Americans.

In a prior post on MOJ (here) I mentioned that I am partially of Arab descent (my maternal grandmother was a Maronite Catholic whose parents immigrated from Lebanon) and proudly so. When I moved to Chicago from Louisville following my clerkship, my mother said “Never forget who you are and where you come from.” I have tried to stay true to my mother’s prayer and so have been involved in a number of Arab organizations including serving as a founding member of the Arab American Bar Association of Illinois (AABAR), and now serving as its newly elected president.

The Arab Bar’s membership is about half-Christian and half-Muslim, but the bar association, as such, is neither political nor religious. In interacting with one another, however, it would be difficult for the membership to ignore the political concerns we have for the various countries in the Middle East (countries of origin and ancestral homelands), and it would be absurd for us to ignore one another’s faith traditions. In the freedom made possible by the American constitutional order and the openness and mutual respect that it can and often does foster, our bar association is, I would say a model for inter-religious dialogue.

Having said that, despite many years of involvement in the local Arab American community, I had never had occasion to visit a mosque . . . until recently.

Last week, an umbrella organization for the various Arab American groups in and around Chicago, the Council of Arab Organizations of Illinois (CAO), conducted a board meeting at the Mosque Foundation, the primary Islamic house of worship on the Southside.

Following our meeting, the mosque’s president (a lay, volunteer position) hosted me and another Christian representative on CAO on a tour of the mosque. Although it was a Sunday (not the Muslim Sabbath) a number of men and boys, women and girls stopped by for prayers. They entered through separate doors that led to separate prayer spaces – large unadorned carpeted areas. The mosque hosts nearly 3500 people every week for Friday prayers, but it also draws large crowds for sunrise and morning prayers during the week. Although technically separate, there are two K-12 Islamic schools immediately adjacent to the mosque, the Universal School and the Aqsa School. The membership at the mosque is overwhelmingly (though not exclusively) Palestinian. The day that I was there the community marked the anniversary of Al Nakba (“The Catastrophe”) when the State of Israel declared its independence followed shortly by the massacre and displacement of hundreds of thousands of Palestinian Arabs. (N.B. The Israeli war of independence is a complex historical event, and I am not here attempting to summarize that conflict in all its complexity, only one important dimension of it that is of special significance to Palestinians).

Now I am keenly aware that there are many, vast differences between Muslims and Christians – spiritual, theological, cultural, intellectual – and that there are enormous differences even within each non-monolithic group. But what struck me most during my visit was the enormous similarities between the faith community at the mosque and the typical Catholic parish. Indeed, walking around the mosque grounds I couldn’t help but think that this was us about a hundred years, when so many Catholic parishes were founded, followed in short succession by the building of a parish school and a parish social hall. This is how Catholic life used to be (and perhaps still is for some parishes) where the parish functions as the center of family life. It reminded me how ethnic ties and political causes were a source of unity for Catholic immigrants in a country that often viewed them with suspicion (think of the Irish and the cause of Irish independence) and as how the parish served as a vehicle for recognition in the wider community.

I am not waxing nostalgic for the Catholic ghetto. What I am saying is that it was inspiring to see how religious liberty is vigorously exercised in a non-Christian context by a group of people often vilified in the mainstream culture. Walking on the grounds of the mosque and recognizing the freedom that made it possible made me proud to be an American.

The threats to religious freedom today are real. Religious liberty is, as Pope Benedict recently said “that most cherished of American freedoms.” It would be a shame if faith communities like the Mosque Foundation were denied the opportunity to exercise that freedom to its fullest. Although it was Catholic institutions were the specific target of the recent HHS mandate, the threat to religious liberty is a threat to us all. It is a threat that, if realized, will not only fundamentally alter our freedoms but out self-understanding as Americans.

Saturday, June 2, 2012

Commencement and the Road not Taken

By Robert John Araujo, SJ

On Friday night I had the honor to be the graduation speaker at a coeducational Catholic high school in the Archdiocese of Minneapolis/St. Paul. I had many weeks to think about what I ought to say to the young men and women, most of whom will be attending college later this summer. As I prepared my words, I thougth it prudent to relate the lives of these young and energetic people to those who have preceded them in faith and wisdom. Although the students have accomplished much, they really are just beginning to learn about life, its meaning, and who and what they are. The same questions are suited for law students as they graduate. The same can issues apply to the rest of us as well. As I mentioned in the address, these questions form a part of who the human person is, for they never go away. For those who might be interested in the full address, here it is: Download Graduation Address at St Agnes .

A blessed Trinity Sunday to one and all.

RJA sj

Friday, June 1, 2012

Bringing Death into Our Lives

By Rob Vischer

Joseph Raz has posted the text of a lecture he gave recently, "Death in Our Life." The abstract:

[The lecture] examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life in great pain or total dependence, or a vegetative state. I argue that the right cannot cogently be conceived as a narrow right, confined to very limited circumstances. It is based on the value of having the normative power to choose time and manner of one’s death. Its recognition will be accompanied by far reaching changes in culture and attitude, and these changes will enrich people’s life by enabling them to integrate their death as part of their lives.

I have not (yet) read the paper, but my reflexive reaction is to resist the presumption that bans on euthanasia preclude the integration of our deaths into our lives. Integrating the various components of my existence into a coherent life does not necessarily require me to choose the terms of each component. A natural death can be embraced as part of my life-narrative even if I cannot predict the circumstances or avoid the suffering that may accompany it. I'm not making a broader argument about euthanasia at this point, simply objecting to the tendency to equate integration with choice.

One additional point: Raz is undoubtedly correct that our society fails to support the integration of our deaths into our lives, but that may stem more from our efforts to avoid any meaningful contemplation of our mortality. A more powerful remedy, in my view, can be found in Ash Wednesday than in euthanasia.

Thursday, May 31, 2012

The Wonder Drug . . . That Comes at a Terrible Price

By John M. Breen

Just when you think the world can suffer no deeper depravity than what has already taken place, the world surprises yet again.

Witness this report from South Korea where customs officials recently seized pills made from the dried flesh of aborted children from China (here). Labeled as “stamina boosters” or “rejuvenation pills” the tablets are reportedly used “to enhance sexual performance” (here).

As Pundit & Pundette wryly notes (here) “But of course. It's like the circle of life. Well, not life, exactly, but with 13 million abortions a year [in China], dead baby is definitely a renewable resource.”

In his Modest Proposal, Jonathan Swift recommended that the severe poverty in Ireland could be relieved by selling the young children of the poor to the wealthy for consumption.

“I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricasie, or a ragoust.”

What Swift intended as satire in the 18^th century has been realized as tragedy in the 21^st century with one difference. Apparently the best use for the remains of dead children isn’t as a source of nutrition for adults but as a drug to enhance sexual virility.

This is yet another of the many wrongs committed by abortion. The act of abortion not only takes the life of the unborn child, the legal recognition of this act also denies the child his or her very humanity, and with it the dignity that is integral to membership in the human family. With the commodification of his or her remains, the aborted child has no dignity even in death.

The drug made from the dried flesh of dead human children may work wondrous results, but it comes a price . . . the price is one’s soul, and the soul of our culture.

Doubtless should a second term of the Obama administration become a reality Secretary Sebelius will find that “health” reasons necessitate the inclusion of this wonder pill on the HHS’s list of approved drugs that employers must make available to their employees. And with the promotion of certain “preventive health services” by Sebelius and Obama’s HHS, the pills may even be available for “free” since these services will help ensure a ready supply of domestically produced raw materials. (The legal reform of health care, you see, is all about cost savings!).

As we know from the current debate over the HHS contraception/sterilization/abortifacient mandate, what is advertised as “free” may come at a terrible price. The price of the current mandate is the loss of religious freedom. The price of the “rejuvenation pills” made from the flesh of aborted children is the loss of human dignity – for the children, for the consumers of such pills, and for all of us.

Scholars Letter on North Dakota Religious Liberty Amendment

By Thomas Berg

Yesterday I blogged about the debate over the proposed North Dakota amendment to apply the "compelling interest" test to state religious-freedom claims (see my own op-ed defense of the proposal). Now, to counter the groundless warnings about what the proposal would do, a group of religious liberty scholars (including MOJers Garnett, George, Sisk, and Berg) have issued a letter to the state legislative council, making among others the following points:

If the sky has not fallen in the 31 states where these provisions are already the law, including neighboring states like Minnesota, there is no reason to think the experience will be any different in North Dakota.

Indeed, these laws typically do not wind up applying to large numbers of cases. But those few cases are often of intense importance to the people affected. We should not punish a person for practicing his religion unless we have a very good reason. These cases are about whether people pay fines, or go to jail, for practicing their religion—in America, in the 21st century.