Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Michael noted here. This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country. It's one that I've encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it. The misunderstanding leads commentators to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty. I'll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context. The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility. If I were a betting man in the mandate context, I'd put the odds somewhere around 60-40 for upholding the mandate as constitutional (RFRA is another matter entirely).
The part that people do seem to get is the basic rule of Employment Division v. Smith -- the announcement that a facially neutral law which applies generally is constitutional under the FEC, even if its effects may substantially burden a religious claimant.
But that's just the beginning of the analysis. I repeat: that is just the beginning of the analysis. The tricky part is that Smith carves out a number of "exceptions" to the core holding. One of these has, in part, grounded the Court's decision in the Hosanna-Tabor case (disagree as one may with the Court's distinction of Smith).
Another "exception" -- the key exception for our purposes -- involves regulatory schemes which conduct individualized assessments for deciding whether they will grant exemptions. The Court in Smith discussed this "exception" in order to make its way around the unemployment compensation cases (like Sherbert v. Verner). But I put quotes around "exception" because it really isn't an exception at all. It's part of the very rule that Smith announces -- the part dealing with general applicability. Laws which make lots of exceptions are not generally applicable. And a law which is not generally applicable is lifted out of the Smith framework and (ostensibly) receives strict scrutiny (I bracket the issue of whether the sort of scrutiny that FEC claims received pre-Smith really was, in the event, strict).
The question for courts interpreting this exception is what precisely its contours ought to be. Should it be limited to regulations with textual exceptions built right into the statute? Should it apply whenever there is a practice of conducting individualized assessments, and granting individualized exemptions, whether or not the text so specifies? Should it apply when there has been a history of exemptions granted on secular grounds, but not (never?) on religious grounds? How many exemptions are enough to trigger the exception? One? If so, the exception seems to swallow the rule, so that can't be right. Should there be some sort of balancing approach to deciding when the exception kicks in and when not? Should it be subject-specific -- i.e., limited to the unemployment compensation context? (Deeply unpersuasive, in my view, but some courts have said so.) All of these issues are unresolved as a matter of fixed doctrine. Courts have resolved them in a wide variety of ways. They remain to be litigated, and the results are uncertain. There is at least one member of the Supreme Court -- Justice Alito -- who has looked favorably on this exception in a couple of cases when he was a Third Circuit judge. How the rest of the Court might react, should the issue ever reach it, is anybody's guess.
I should emphasize that it still seems to me, in the end, that an FEC claim by Catholic organizations will face a problem with the existing doctrine. But...enough already with intoning the basic rule of Smith, as if this obviously resolves the question decisively, without so much as mentioning, let alone getting into, the doctrinal weeds of the exception. That sort of curt analysis represents a gross misunderstanding of the state of free exercise. 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. That doesn't mean the claim will succeed. The results are uncertain, and are likely to vary (at least for the foreseeable future) from court to court.
In my opinion, that is just as it should be. Let the issue rattle around the lower courts for a decade or two. Let judges apply themselves to these problems in light of the particular circumstances and factual specifics facing them. Let's see what shakes out with time and that peculiar variety of judicial wisdom which results from keeping your eyes fixed narrowly on the specific case or controversy right in front of you.
UPDATE: My friend Prof. Cathy Kaveny criticizes some of what I have to say here (Mike Moreland and I have some comments to Cathy in response). I want to make clear that my post was not a response to hers; I've been beating this drum repeatedly here at MOJ before, and I'll be beating it again here and there. Mostly I think that this area of the law is going to see an explosion in the coming years -- it has the potential to have a huge effect in FEC law, but what is most likely (I think) is that it will see some successes and some failures in the lower courts over time.
OK, this is not about Catholic legal theory, but I hope you'll agree that it's a lovely Easter story. At the Easter Vigil mass at the Trenton, New Jersey Cathedral, two wonderful sisters, Lauren and Julia Wilson, were received into the Church. Julia's journey to Catholicism began when she read St. Augustine's "Confessions" in a seminar I taught at Princeton with my friend and colleague Cornel West. Professor West, a Baptist, graciously came along to the Cathedral to surprise Julia and stand with her and me (I had the honor of being sponsor for Julia and Lauren) as she was officially received by Bishop David O'Connell. It was a truly joyous occasion. Here is a photograph of the four of us taken in front of the altar after the Vigil.
As Rob pointed out, Cardinal Turkson, President of the Pontifical Council for Justice and Peace, recently presented a reflection on the "Vocation of the Business Leader", the product of a 2011 seminar at the Pontifical Council on "Caritas in Veritate: The Logic of Gift an the Meaning of Business", a collaboration of the Council, the University of St. Thomas' John A. Ryan Institute for Catholic Social Thought, and the Ecophilos Foundation. A number of my colleagues at UST were involved in drafting the document, including Michael Naughton, director of the Ryan Institute, Ken Goodpaster,Endowed Chair in Business Ethics, and Bob Kennedy, Co-Director Emeritus of the Murphy Institute. The document is a creative step in applying some of the abstract ideas of Caritas in Veritate to the business world.
John Allen's current column describes it as "Catholic social teaching, Socrates-style. The 32-page document is designed as a vade-mecum, or practical handbook, for business leaders trying to integrate their faith with their work." He points particularly to the appendix:
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?” and “Am I receiving the sacraments regularly and with attention to how they support and inform my business practices?”
Others are more concrete, and with real bite. For instance:
Am I creating wealth, or am I engaging in rent-seeking behavior? (That’s jargon for trying to get rich by manipulating the political and economic environment, for example by lobbying for tax breaks, rather than by actually creating something.)
Is my company making every reasonable effort to take responsibility for unintended consequences [such as] environmental damage or other negative effects on suppliers, local communities and even competitors?
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?
Do I follow the same standard of morality in all geographic locations?
Am I seeking ways to deliver fair returns to providers of capital, fair wages to employees, fair prices to customers and suppliers, and fair taxes to local communities?
Does my company honor its fiduciary obligations ... with regular and truthful financial reporting?
When economic conditions demand layoffs, is my company giving adequate notifications, employee transition assistance, and severance pay?
Interesting exercise! You can find the document here.
Last week, I had the opportunity to observe many of the Seven Themes of Catholic Social Teaching at work. I had the privilege of serving on an expert working group to aid in drafting a model child protection law. This project arises out of the Child Protection Project, which is an exciting partnership between The Protection Project of The Johns Hopkins University School of Advanced International Studies and the International Centre for Missing and Exploited Children. One of the Project's goals is to "draft, publish, and globally disseminate model child protection legislation." While not intended to be connected to the Themes, I could not avoid thinking of them as the group worked. While present I was impressed with the focus on dignity of children, the desire to protect the most vulnerable, and a serious commitment to a responsibility to participate in society for its improvement.
The working group was the last of six that have convened throughout the world. All these experts have brought to the table insight from their experience regarding the needs of children to live in safe and healthy environment – and the reality that so many of the world's children do not. While there was a healthy exchange of perspectives, not always in agreement, it was hopeful to see so many people driven by a desire to protect the inherent dignity of children and their right to live and grow in a protective environment.
Today's USCCB document on religious liberty is a powerful statement (one that needed saying, I think), and I'm sure we'll have a lot to discuss about it. But can I protest one law-related aspect distinct from the merits? The statement is followed by a copyright notice, appropriately, but then comes this sentence: "No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright holder."
This is a boilerplate assertion found commonly in books and other copyrighted works. But as numerous copyright scholars have pointed out, it plainly misstates the law: "De minimis copying is not infringement, and fair use also permits certain kinds of reproduction." (Jason Mazzone, "Copyfraud," PDF p. 24.) Nor can the author create a contractual agreement against reproduction with every person who accesses a broadly distributed work. Of course, no one takes the blanket copyright claim seriously. Many of us will copy and transmit parts of the bishops' statement to comment on it, as we should, and presumably as the bishops want us to do. But that is precisely why, I think, our Christian organizations should avoid--rewrite--such blanket claims.
Actually, I see two reasons why they should do so. First, we should tell the truth. The notice does not make an accurate statement about the law, or about the organization's intentions (the bishops probably want a good deal of reproduction of excerpts for education and comment without having to give permission in each case), or about what is moral (it is perfectly moral as well as legal to reproduce parts of a work for fair use and similar purposes).
Second, our Christian organizations should model a more hospitable attitude toward sharing of creative work--and at least should not reinforce the most inflated versions of the moral status of copyright (i.e., "all copying is theft"). The Pope himself, like other Vatican officials, has argued against "an excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property." (Let me shamelessly plug my piece on "Intellectual Property and the Preferential Option for the Poor," which expands on the argument why Catholic moral teaching, while validating copyright and other IP rights, cuts against the most inflated versions of them.)
Again, the blanket copyright assertion probably will mean little in practice. But I'd urge the bishops and other Christian groups to model, and teach implicitly, the better understanding of IP laws and morals. I wouldn't say that necessarily means joining up with Creative Commons and foregoing essentially all claims against reproduction (although in many cases that might be the right thing to do to spread the Gospel). But good modeling certainly means dropping the blanket notice, instead explaining--and welcoming!--fair uses, and so forth.
When Christian student groups at Vanderbilt complained about the university's policy forbidding registered student organizations to set eligibility criteria for leaders, Vanderbilt officials assured everyone that
We recognize that some groups, including some religious student organizations, may decide not to register. We will respect any such decisions and hope that those groups will continue to be actively engaged with our students and community, albeit without the rights and privileges accorded registered student organizations.
Now we have a report that one of those little rights and privileges to be lost is the ability to use the name "Vanderbilt" in the group's title. University officials have demanded that Vanderbilt Catholic change its name because it decided not to register rather than give up its requirement that leaders be Catholics.
“Those student groups who choose not to comply with the university’s nondiscrimination policy do forfeit the privileges associated with registered student organization status and that includes the use of the Vanderbilt name,” spokesperson Beth Fortune told Fox News.
Unless there is something missing in this report, it reveals the utter dishonesty, and confirms the intolerance, of the Vanderbilt administration. "[B]e actively engaged with our students and community," they soothingly said--"You just can't refer to yourself as being at Vanderbilt."
I assume that forbidding "use of the Vanderbilt name" includes forbidding a name such as "The Catholic Community at Vanderbilt." BUT I would think that if the Catholic group made such a change, the university would be unable to stop it legally. Vanderbilt's only claim would be a trademark suit, and the group would have a winning defense of fair use: the group is simply referring to its location and focus, not implying university sponsorship. (Would the university then try to bar the group from any activity or publicity on campus? How far is it willing to go in revealing that it in fact does want these groups off of campus altogether?)
The USCCB's Ad Hoc Committee for Religious Liberty has just released this document, which includes a number of interesting historical and theological arguments. Here's a brief excerpt:
Religious liberty is not only about our ability to go to Mass on Sunday or pray the Rosary at home. It is about whether we can make our contribution to the common good of all Americans. Can we do the good works our faith calls us to do, without having to compromise that very same faith? Without religious liberty properly understood, all Americans suffer, deprived of the essential contribution in education, health care, feeding the hungry, civil rights, and social services that religious Americans make every day, both here at home and overseas.
What is at stake is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Religious believers are part of American civil society, which includes neighbors helping each other, community associations, fraternal service clubs, sports leagues, and youth groups. All these Americans make their contribution to our common life, and they do not need the permission of the government to do so. Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations.
As it turns out, there was recently a debate between Professor Richard Dawkins and Cardinal Pell. While the blogosphere has a lot on this, you can view the entire discussion here thanks to Fr. Z.
The Center for Law and Religion is pleased to announce that Professor Ayelet Shachar (Toronto) will visit us at St. John’s Law School next Monday, April 16, at 4:15 pm. Hers is the sixth and final session in our ongoing seminar, Colloquium in Law: Law and Religion. Professor Shachar will discuss her ongoing work involving the legal status of religious tribunals as well as more general problems of religious pluralism. Among the papers for consideration will be her thoughtful chapter on state, religion, and the family in this book.
Academics in the New York area and beyond are welcome to attend. Please let me know.
I know we have some Paul Ryan admirers on this blog, and far be it from me to discourage elected officials from wrestling with the implications that Catholic social teaching has for public policy, but I start to feel a little tense when such "wrestling" looks more like "confident proclamation devoid of nuance." Consider Ryan's explanation of his budget proposal:
Ryan said that the principle of subsidiarity — a notion, rooted in Catholic social teaching, that decisions are best made at most local level available — guided his thinking on budget planning.
“To me, the principle of subsidiarity, which is really federalism, meaning government closest to the people governs best, having a civil society … where we, through our civic organizations, through our churches, through our charities, through all of our different groups where we interact with people as a community, that’s how we advance the common good,” Ryan said.
Last week I subtracted points from a student's paper who equated subsidiarity with federalism. They may be consistent in their facilitation of similar values, but federalism is a structural feature of government that operates without (much) regard to function; subsidiarity is, at the core, driven by assessments of function. (I trust that Prof. Brennan, who has minced no words in criticizing me for too readily embracing a secularized vision of subsidiarity, is currently penning a very strongly worded letter to Rep. Ryan.) And then there's the preferential option for the poor:
The Wisconsin Republican said that he also drew on Catholic teachings regarding concern for the poor, and his interpretation of how that translated into government policy.
“[T]he preferential option for the poor, which is one of the primary tenets of Catholic social teaching, means don’t keep people poor, don’t make people dependent on government so that they stay stuck at their station in life, help people get out of poverty out onto life of independence,” said Ryan.
I agree that CST does not want us to "keep people poor," but it is a matter of some dispute whether any meaningful tax increases for the wealthy can be equated with such an outcome. I'm not suggesting that Ryan's budget is misguided -- indeed, there is much about it that I admire -- or that he is insincere in his application of CST. It's simply another example of CST defying easy categorization; I have more respect for folks who acknowledge that. (And that's probably why I'd be a disaster in politics, where nuance does not seem to go over well.)
