Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, April 16, 2012

On Rob's Questions About the HHS Mandate and Smith

By Thomas Berg

Rob,

Your questions are good ones, and the attack under Smith is an uncertain one (the RFRA claim is much stronger).  But the point of the "secular exceptions" attack--which Alito accepted several times in the Third Circuit--is not that the exceptions show the government is targeting religion (i.e. is motivated by reasons unrelated to the purposes of the underlying legislation).  It's rather that the government is giving weight to other interests, enough weight that it's willing to accept some frustration of its purpose by exempting them, and then is unwilling to give similar weight to religious freedom--a constitutionally protected interest that should receive serious weight.  The government may be not targeting religion, but it is devaluing it from the rank of important interests.

I don't think the small-employer exception to the HHS mandate, or a small-business exception in laws generally, is "driven by the underlying purposes" of the law as you suggest.  Rather I expect that here, as elsewhere, it's primarily driven by a concern that small businesses experience a disproportionate imposition from the rule.  And then the argument kicks in that religious freedom interests should receive similar consideration, because those organizations likewise experience a serious burden, unless there's a compelling interest in making the distinction.  Although the government might respond that the reason for the small-employer exception is simply that each one does not undercut coverage as much as each large employer, we all know the obvious logic of aggregation across a category.  Here, when you exempt all entities under 50 employees, you cut out 20-40 million employees and (I believe the statistic is) 90-some percent of employers.  For the government to accept that big a hole in the mandate but then to say religious organizations deserve very little accommodation may not target religious conscience, but there's a decent argument that it significantly devalues it.

It's true that if this logic applied every time a secular exception were made that compromised the government's interest, then Smith would be effectively overruled.  But Alito adopted this logic in the Third Circuit several times--most notably in Fraternal Order of Police v. Newark (1999)--so he might lead others on the Court in that direction.  And there are middle positions where a court can say there are enough secular exceptions, with a wide enough range of effect, to indicate that the government is treating religious freedom as significantly less weighty than other valued interests.  The HHS mandate not only has the large holes in coverage, but it provides some of them on an individualized basis--the hardship waivers that have been given to many employers--and Smith (in order to preserve Sherbert v. Verner) had identified that as a category where the compelling-interest test still applies.

It's also true that any move in this direction would limit the effect of Smith and get the courts involved in ordering exemptions in some imperfectly-defined category of cases.  But we just saw the justices unanimously limit the effect of Smith in Hosanna-Tabor, so they might do so again.  The "secular exceptions" approach also, as compared with the straight-up "compelling interest" approach, leaves the government more room to control whether it must grant a religious exemption: it can avoid doing so by refraining from granting other significant exemptions.

With that said, this is all still very uncertain, and the RFRA claim is significantly stronger, although still uncertain too.

How could (and why should) the HHS mandate be held unconstitutional under Smith?

By Rob Vischer

I oppose the HHS contraceptive mandate, but I admit to being confused (and a little troubled) by the argument that, under Smith, legislative exceptions make it more likely that a statute is unconstitutional.  I understand that there are exceptions built into the rule of Smith, though I don't know the case law well enough to have a good sense of how they play out in practice.  I'm having a hard time seeing how the exceptions -- especially to the extent that those exceptions are triggered by the existence of exceptions in the legislation at issue -- could stretch to encompass the HHS mandate.  Marc writes:

The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations;  hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others.  There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution. 

If the legislative exception itself calls into question the general applicability that is at the heart of the Smith requirements -- i.e., the exceptions suggest that certain categories of practices are being targeted for reasons unrelated to the objectives of the underlying rule -- I can see why Smith wouldn't apply.  But if the exceptions are driven by the objectives of the underlying rule, why would that take us outside of Smith's scope?  Exceptions based on the number of employees or on the fact that the organization serves members of the sponsoring religious group appear to be related to the underlying rule's objective.  There is no suggestion that HHS is picking and choosing the practices and groups that it prefers through the exceptions to the mandate.

Alternatively, if the exceptions are taken to be evidence that the government interest at stake is not all that compelling since the government is willing to give ground on certain aspects of the legislation's enforcement, doesn't that simply take us back to the pre-Smith balancing approach, from which Smith was a dramatic departure? 

More broadly, to the extent that the presence of exceptions is enough to call the Smith rule's applicability into question, isn't the easy legislative response to stop granting exceptions?  Is that result good for anyone?

"The Vocation of the Business Leader"

By Thomas Berg

This new statement on business, business ethics, and Catholic thought, backed by the Pontificial Council for Justice and Peace, has received positive responses from different points on the ideological spectrum.  I haven't had a chance to read it yet, but various commenters seem to appreciate its strong emphases both on the moral legitimacy of profitmaking and on the moral obligations of business leaders.  I found particularly interesting, though, John Allen's comments about the statement's method.  Allen emphasizes how the statement avoids the unattractive alternatives into which too many "faith/society/politicy" documents fall--that of dealing either in agreed-on but unhelpful abstractions or in specific but insufficiently-supported policy recommendations:

In a sound-bite, the idea is to be didactic on principle but interrogatory on policy. The church may not have to offer specific answers; perhaps it’s enough to frame the right questions. Think of it as Catholic social teaching, Socrates-style. . . .

Perhaps the most striking element of the text, however, comes in its appendix. There one finds a “Discernment Checklist for the Business Leader,” composed of thirty questions which amount to an examination of conscience informed by Catholic social teaching.

Some are fairly broad (yet still packing a punch), such as, “Have I been living a divided life, separating Gospel principles from my work?" . . . .

Others are more concrete, and with real bite. For instance: . . .

  • Do I provide working conditions which allow my employees appropriate autonomy at each level?
  • Am I making sure that the company provides safe working conditions, living wages, training, and the opportunity for employees to organize themselves? . . .

“Vocation of the Business Leader” may thus be that rarest of Vatican texts: Something that isn’t just dissected by vaticanisti and other denizens of the church’s chattering classes, but actually used out in the field. One can imagine, for instance, retreats for business leaders organized around the document, culminating in the examination of conscience it invites. . . .

The team drafting the document included, among others, my colleagues Mike Naughton (one of the coordinators), Ken Goodpaster, and Bob Kennedy from St. Thomas's business school, Catholic Studies center, and John Ryan Institute foe Catholic Social Thought.  A shout out to them and the other drafters!

Sunday, April 15, 2012

Week Three of Lynn Trial

By Mary G. Leary

Last week's testimony continued during the trial of Msgr. Lynn and his co-defendant, Fr. James Brennan. Much of the evidence continued to portray an atmosphere of people complaining about abusive priests to Lynn's office and the Archdiocese failing to act appropriately. Lynn's attorneys continued to pursue a strategy of asserting that removal of priests was the duty of the now deceased Cardinal Bevilacqua and not Lynn.

Two witnesses may be of particular note to MOJ readers, however. One was Bishop Robert Maginnis as vicar of Montgomery County, Pennsylvania. Earlier in the trial, Sister Joan Scary testified that she was concerned when a Fr. DePaoli was receiving what appeared to be a form of pornography at a church rectory. Fr. DePaoli had a prior conviction for child pornography possession, but was allowed to serve in a parish without notice to the parishioners about his conviction. After Sister Scary mailed her concerns and relevant information to the Bishop, she was fired from her position. Bishop Maginnis testified in connection with these events and, according to the New York Times, he stated that "he could not remember much about the episode but that he had been trying at the time to establish whether the sister's assertions were true." In 1996 he reportedly wrote to Msgr. Lynn that "perhaps she [Sr. Scary] is using [the pastor's] absence to cast doubt on Father DePaoli's credibility." DePaoli continued as a priest until, due to abuse of children, he was defrocked in 2005. Lynn's defense attorneys confirmed with Maginnis that Lynn, as Secretary for the Archdiocese, did not have the power to remove priests but that said power rested with the Cardinal.

A second interesting witness testified at the intersection of canon law and criminal law. Here is some of the Washington Post's (via the Associated Press) reporting:

An expert on "canon" law angrily called it "obstruction of justice, cubed" for a Roman Catholic archbishop to have shredded a list of 35 active priests accused of molesting children.

***

The Rev. Thomas Doyle, an expert on Roman Catholic law, testified at Lynn's child-endangerment trial Thursday. Lynn, 61, is the first Catholic church official in the U.S. charged with child endangerment for allegedly failing to protect children from suspected priest-predators.

Church law requires church officials to investigate the complaints, Doyle said. And the archbishop — following the teachings of Christ — should have sought out victims to offer pastoral care, he added.

"He's got a list of men who are sexually abusing children, and he's going to shred it?" an incredulous Doyle asked on cross-examination from defense lawyers.

***

Jurors also heard excerpts Thursday from Lynn's 2002 grand jury testimony. Lynn testified that his office had never referred any of the complaints to local authorities despite a 1995 state law that added clergy to a list of mandated reporters of suspected child abuse.

Lynn believed the law only required reporting if a "child" had made the report. That rarely if ever happened. The reports were coming in from adults who said they were abused as children, or occasionally from parents of minors, he testified.

 

If this reflects Msgr. Lynn's beliefs accurately, this would be a rather narrow reading of mandatory reporting statutes. The purpose of such statutes lies in the fact that child abuse is so often underreported by children. As a result, mandatory reporting statutes require certain professionals to report suspicions of child abuse to state officials so that cases will be investigated even without a disclosure from a child. As the trial progresses it will be interesting to see what the jury thinks of this claim. Notably, Lynn is not charged with violation of that statute but with endangering the welfare of children.

The trial will start its fourth week on Monday.

SSPX rejects the Bishops' religious-freedom statement

By Rick Garnett

Oh well.  (I think the Council got the better of this argument.) 

More on Smith and the USCCB Statement

By Rick Garnett

Michael has already pointed out the inaccuracy of the complaint that the Bishops' statement on religious liberty is, or could reasonably be regarded as, "partisan", even if, as some have pointed out, it could perhaps have been improved by more explicitly discussing the challenges faced by Muslims in the United States.  (DIsclosure:  I serve as a lay consultant to the Ad Hoc Committee for Religious Liberty, which produced the statement.)  The statement cites a number of (though certainly not all) troubling events, laws, decisions, and trends -- that is, it cites to evidence and facts -- and criticizes policies supported by Republicans and Democrats alike.  It emphasizes strongly and clearly the fact that religious liberty is a human right, enjoyed by all, and that it faces challenges -- and requires defense -- around the world and from many directions, from "left" and "right" alike. 

I'm afraid it is the charge itself, and not the statement, that appears partisan.  The appropriate response, it seems to me, of someone who regrets the possibility that an increased focus by Catholics on the importance and vulnerability of religious liberty, correctly understood, might prompt some of those Catholics to vote for one party, rather than the other, is to challenge the other party to improve its understanding of, and sensitivity to, religious liberty. 

With respect to the Court's Smith decision, Marc has already explained some technical aspects of post-Smith Free Exercise doctrine that are sometimes overlooked or forgotten.  In addition, though, it should be emphasized that Smith -- which, all agree, places some obstacles (though perhaps not insurmountable ones) in the path of a Free Exercise Clause-based legal challenge, in court, to the preventative-services mandate -- is not contrary to or even in tension with the Bishops' arguments that the mandate is inconsistent with our nation's professed commitment to religious liberty and that a broader exemption would be more in keeping with (what Justice Douglas once called) "the best of our traditions."  

Smith does not stand for the proposition that religious accommodations are bad, undesirable, or unconstitutional.  Quite the contrary:  The decision invites religious accommodations.  It holds, however, that because exceptions from otherwise-generally-applicable laws are not always possible or justified (see also, e.g., Dignitatis humanae), and almost always involve balances and trade-offs, they should be created by politically accountable actors rather than federal judges.  (In so holding, I believe the decision is sound, as I explain in this short essay.  For a more detailed discussion, see this article by my colleague, Prof. William Kelley.)  So, the Bishops are urging all of us, to urge our politically accountable representatives, to do precisely what Smith expects them to do, i.e., to accommodate religion generously, in a way that reflects our underlying commitment to the good of religious freedom.

The Catholic League's repulsive and stupid response to Rosen's offensive and stupid comment

By Rick Garnett

Pia de Solenni has the story, here.  How frustrating, that an organization that could and should be focused -- intelligently -- on the reality and dangers of anti-Catholicism (and, uncomfortable as the fact is for some, anti-Catholicism is a reality) hamstrings itself, and dishonors the Church, with such nasty nonsense.  (The nastiness and stupidity of Rosen's revealing comments were clear enough to most people without the CL's help.)  Parents who adopt are parents, and their generosity, sacrifice, and love inspires.   

A Thought on Evolutionary Textualism

By Marc DeGirolami

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something -- and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words' authorship.  And yet it seems to me that the interpretation of the Smith decision -- and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) -- may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here's why.  We know that Justice Scalia was the author of Smith.  And we know that his Smith opinion for the majority was joined by 4 other Justices (Justice O'Connor wrote a special concurrence which did not adopt the Smith framework).  And we also know that Smith itself seems to carve out really three categories of exception -- for hybrid rights, regulatory schemes with individual assessments, and the issue of church autonomy.

What we don't know is what either Justice Scalia or any of the other Justices who signed on to the opinion intended by making the exceptions to Smith's general rule.  Perhaps they really intended to create major exceptions which would put in doubt the central holding of the case.  Or perhaps they needed to make these exceptions simply in order to circumvent existing precedent, never intending (or desiring) that those exceptions would see the light of day again in future cases.  Or maybe there was a combination of motivations -- some exceptions were really intended to have doctrinal consequences, while others were just attempts to get around some inconvenient decisions of the past.  We could ask Justice Scalia or any of the other Justices signing the majority opinion what they intended 22 years ago, but we are not likely to get a reliable answer.  It's hard to remember what one intended by doing something in the past, let alone in a single case among hundreds some decades long past, and now lost to the sands of time.

But it gets fun when one reflects on what happened next.  In the wake of Smith, lower courts had to make sense of its language.  They had to interpret the language -- including, and especially, the exceptions to the central rule -- in a way that made sense to them in light of the specific concerns reflected in their own cases.  It was the text, rather than the intentions motivating it, which served as their guide and governed the texts that they in turn produced.  And by interpreting the text in this way, lower court judges moved Free Exercise law in directions possibly (probably...almost certainly) not intended by the Justices who joined Smith.  It is entirely possible (perhaps even likely) that the exception for individualized assessments made in Smith was never remotely intended to ground a subsequent doctrinal evolution in which that exception was interpreted, expounded, and expanded upon by lower courts.  But that is exactly what has happened: in fact, it has happened many times over, as different judges have interpreted it in very different ways.  The Justices may have intended one thing, but the words of Smith do not belong to them, and it is for later courts to interpret them in new ways -- ways which take text in unexpected and likely unforeseen directions.  This phenomenon occurred in Hosanna-Tabor too.  If you had asked Justice Scalia at the time he wrote Smith whether he thought that the ministerial exception lay outside of Smith's general rule, he may well have given you a very different answer than what he gave in signing on to CJ Roberts's decision this past January.

My own view is that the evolutionary quality of textualism might please Justice Scalia, himself (along with Justice Black) a primary exponent of its virtues.  The text does not belong to its author.  It belongs to the interpreters that follow -- to those others that come after.  It is in this way that textualism may be a theory of both fixity and gradual change.   

Saturday, April 14, 2012

Religious Liberty is a fact of life--and of citizenship

By Robert John Araujo, SJ

       

I thank Mike, Marc, and Tom for their postings of earlier this weekend. Whether I have something to add, or not, is up to them and to other contributors and readers of the Mirror of Justice, but here goes:

We, wherever we are—be it in the United States or elsewhere—if we are believers in God and the next life—be we Catholics, Christians, Jews, Muslims, etc., etc., etc.—are citizens of two cities. This does not mean that we have divided loyalties; rather, it means that we must be loyal, faithful, and true in the exercise of our citizenships. The ultimately loyalty for the Catholic is to God and His holy Church.

Now I return, more generally, to the idea of dual citizenship for the believer-American citizen, particularly the Catholic. Recalling Charles Dickens, we in the U.S. of the second decade of the twenty-first century, live in the best of times and the worst of times. Dickens addressed the bloody turmoil of the French Revolution. We address a different time, but it is not without its mammoth challenges and suffering as well as hope and promise.

In the American context, the dual citizenship of which I speak is not a loyalty to two states (one of which is the United States) but to country and God. For, American Catholics are simultaneously asked to be faithful members of the Church and contributing members of the American republican democracy. This is why Pope Benedict XVI earlier this year in one of his ad limina addresses to U.S. bishops noted that there is now, more than ever, a “need for an engaged, articulate and well-informed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with courage to counter a reductive secularism which would delegitimze the Church’s participation in public debate.”

Why is this important?

I, for one, do believe the voice of Catholics, as formed by the Universal Church, her teachings, the exhortations of the Holy Father, and the teachings of the bishops-in-union-with-Peter, are quite correct in their presentation of what’s right and what’s wrong regarding the positions on the issues of the day on the public matters that address the common good. This is not argument, on my part, this is—for the time being—background.

What is argument is this: for the American republican democracy to succeed, it is essential that this voice must not be excluded and silenced. Moreover, as the Framers established a union described in the Constitution’s preamble, it is essential for Catholics, who are simultaneously citizens of two cities, to understand how they are to inform themselves on the public issues of the day through careful and deliberate moral evaluation of what is before them. For this preparation to be effective, we need to hear the voices of the successors of the Apostles when they help form our consciences which will direct our actions as citizens in the City of Man. After all, it is we, as citizens of this country, who cast ballots, who run for office, who accept appointive office, and who lobby causes that are crucial to the success of American republican democracy. But when we pursue these things, we must be mindful of our other citizenship.

That is why religious liberty—something that is essential to this country’s establishment, and something that is essential to its preservation—is decisive. To accept what well-meaning persons (who claim fidelity to Christ but who choose what is not reflective of his Church and what is in conflict with citizenship in the City of God) opts for what is not Christ and for what is detrimental to the perseverance of American republican democracy and the critical role that libertas ecclesiae has to play in this democracy. To think that the good Catholic citizen of the U.S. is also true to the faith in Christ and His Church when he or she is attracted to the will of the dominant secular culture is, to borrow from John Courtney Murray, “moral nonsense.”

Dickens spoke of one time of two cities; we still live in a world where two cities are before us and where Catholics (and other believers who are people of good will) are called to participate in both through their dual citizenship. But we cannot be tempted to rest comfortably forever in the City of Man if we forget that the City of God awaits us.

What the U.S. bishops said in their statement of a few days ago on religious freedom will help us understand who we are and where we are going in the exercise of dual citizenship.

 

RJA sj

 

Partisanship and Religious Freedom

By Michael Moreland

I agree with Marc's comments about some mischaracterizations of the law of religious freedom that have been flying around the past many weeks, and, as he notes, we have both commented on a post about Employment Division v. Smith by Cathy Kaveny over at the Commonweal blog.

Speaking of our friends at Commonweal, it's remarkable for a document that invokes Martin Luther King's "Letter from a Birmingham Jail" and criticizes a state anti-immigration statute and the exclusion of many predominantly African-American churches from worshipping after-hours in New York City public schools to be swept aside as an exercise in partisanship. But that's just what the Commonweal editors have done in this editorial. Like Marc, I find much to commend in "Our First, Most Cherished Liberty," including its use of a range of specific examples, adapting the American idiom of religious liberty to a Catholic context, the judicious use of theological and historical sources, and a pastoral sensibility about the challenges facing Catholics today. The document leaves on the table one of the more potent points that could have been lodged against the Obama Administration, namely the Administration's brief arguing against the ministerial exception in Hosanna-Tabor v. EEOC. I just don't see throwing the label of partisanship around as an especially interesting or useful exercise. Catholics on the left bristled at allegations of partisanship from conservative Catholics upon release of the bishops' pastoral letters on the economy and war in the 1980s, conservative Catholics bristle when pro-life advocacy is deemed mere partisanship, and around and around we go. So here's a proposal: in this election year, let's talk about the merits of particular issues drawing upon the rich tradition of Catholic thought, avoid cheap allegations of partisanship against the bishops or anyone else, and let the electoral consequences fall where they may.

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