I've just returned from Albany - where, I am happy to report, my co-author Michael Campbell and I received favorable responses from the New York Bankers Association and and others to a mortgage bridge loan assistance statute that we've put together. (For those who might be interested, here it is: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1987093. And there's even a white paper in support: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1987159.) I've accordingly fallen a bit behind on matters HHS this past 24 hours or so, sad to say.
I've had a quick preliminary look at Robby's and Sherif's Morals and Mandates, however, and as one might have anticipated, I find it a tour de force - a very model of careful analysis of such data as we presently have. (And I do not say this simply because I teach a course titled Markets, Morals, and Methods!) I'll accordingly try to engage more fully with this important intervention in the days ahead, as well as with Marty's thoughtful response and Robby's careful step-by-step rejoinder. (And Sherif, I wish I'd known about you sooner, as I was at alma mater YLS last week to speak on global currency arrangements, of all non-HHS-related things.)
I would also like quickly while at it here to distance myself from a position that I fear Rick might inadvertantly be taken for attributing to me. I do not at all intend to suggest, per the first sentence of Ricks' recent post (http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-quick-response-to-steve-and-bob-re-scalia-accommodation-insensitivity-and-the-mandate.html), 'that we should not be too hard on the Obama administration for its insensitivity to religious freedom ... because Justice Scalia, in Smith, was insensitive to it, too.' (I doubt that Steve meant that either, but I leave the response on his behalf to his own far more capable hands.)
To the contrary of what Rick might mistakenly be taken to assert or imply, I believe that we should be quite hard on the Obama (and any other) administration for any insensitivity (or indeed contempt or indifference) that it might show to free exercise. That certainly includes the first rendition of the HHS mandate, and possibly includes the latest as well (a question, again, that I've abstained for the time being from addressing, pending further information and analysis). I think, moreover, that I have expressed a warranted degree of hardness in all posts on this matter since the present imbroglio - a fracas, alas, of the administration's own oafish making - commenced. And that is so notwithstanding - indeed it is partly because of - my belief that the President sincerely wishes to do the right - and not merely the expedient - thing.
I hope I have also made clear that I am not among those who think President Obama 'awesome.' Nor do I believe that most 'liberal,' 'progressive,' or sometimes 'leftward'- leaning Catholics who balked at Mandate 1.0 regard him that way either. Most of us, I would conjecture, even if we tend less often to find unalloyedly cynical motives behind the President's decisions than some of our friends on the 'right' seem to us sometimes to do, have found him rather disappointing on many scores thus far - too often insufficiently forceful both on behalf of social and economic justice and on behalf of free exercise. (His recent Osawatomie and State of the Union addresses, as well as yesterday's 2013 budget announcement, signal to me very welcome progress on the socio-economic justice - and, finally, sound macroeconomic policy - front, which I hope might be replicated on the free exercise front in what ever final shapes the HHS mandate and other actions might take. But I shall not on that account be ceasing to watch.)
What I did wish to suggest in my post to which Rick refers, and what I hope I did more than merely suggest, is that insufficient solicitude for free exercise is indeed bi- or non-partisan. (We've not here forgotten the infelicitously christened 'ground zero mosque' affair, I presume - in which Robby, I think, was heroic.) How ever one distinguishes Smith from Mandate 1.0 - and how could one not? - the fact is that Smith in its holding and tone troubled many on both sides of the Congressional aisle, and Justice Scalia's dismissive remarks (to an audience to which I referred earlier) about RFRA, passed in response to Smith, likely did little to vindicate him in the eyes of defenders of free exercise. Nor, I suspect, did his little performance of 'Babaloo.' And finally for present purposes, nor did Chief Justice Roberts's offhand characterization of sacramental peyote use in distinguishing Smith from Hosanna-Tabor, I think, do him credit. These missteps and misstatements are perhaps no HHS mandates, but they are surprisingly callous and, I believe, altogether regrettable.
My 'message,' then, I suppose is a platitude - or at any rate ought to be one: The forms of worship, both in liturgical contexts and in that more general conduct of life known as 'ethics,' which have developed among our sisters and brothers of most if not all faith traditions worldwide over the course of millennia, are just wondrous, precious, beautiful, awe-striking things. They spring of love and are immediately recognized by love and in love as ... love. I think it accordingly a deep, dreadful shame - indeed a 'sacrilege' - any time anyone acts or speaks merely dismissively or otherwise cavalierly in respect of any of them, be it by unjustly or unlovingling doing by others in their name, or by contemptuously or recklessly or negligently disregarding them in enacting laws or promulgating rules, or even by merely scoffing at or mocking them. And I fear that we find this, alas, all around - and on both sides of all aisles.
(And I am myself far from innocent.)
More soon. And thanks to all who are writing on this right now.
The conference schedule and registration information is available here. This year's theme is “The Place of Religion in the Law School, the University and the Practice of Law." See you there!
We are grateful to Marty Lederman for his reply to our Public Discourse article on the HHS mandate. We’re afraid, however, that its concerns stem from a misunderstanding of what we argued. Professor Lederman writes:
If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes…
He has, as he thought he perhaps had, misunderstood. In the passage that Lederman goes on to cite, and at other points in the piece, we explain that whether cooperation makes others’ immoral actions likelier is just one factor to consider. Other factors include (as we put it in the passage) “the false beliefs about right and wrong that people infer” from one’s cooperation, as well as one’s witness to the moral truths violated by the wrongdoer. (Regarding the latter, we wrote, the mandate would “dramatically compromise the mission of religiously affiliated institutions to give witness to the moral teachings of their faith.” It is true that they would remain free to express opposition to those practices. But their teaching would be taken less seriously, especially where its cooperation is with what it regards as grave injustices, like abortion.)
Again, we think most of Professor Lederman’s further concerns stem from this misunderstanding. First, he wonders whether it isn’t simply false to say, as we do, that “material cooperation often has worse effects as a result of being more immediate.” But by “effects” of one’s cooperation we included damage to one’s personal witness to moral truths, and other people’s adoption (or rationalization) of false moral beliefs. It can also include one’s emotional habituation to the wrongs in question. Properly understood, then, we believe the claim is quite plausible: the closer one is, the worse these effects—in general.
It is also clear (as we also pointed out in the piece) that the correlation doesn’t always hold. Thus, for example, if your own involvement is the most socially salient link in a chain leading to immorality (e.g., you’re a CEO or a football coach who fails to stop morally evil practices by subordinates), then the extent of the scandal given and the damage done to your witness won’t depend on how long the causal chain to wrongdoing is (unless, perhaps, its length is also very well-known).
It is true that some Catholic manualists treated the proximity of one’s cooperation as having moral significance in itself. We think that this was a mistake (and certainly no part of definitive Church teaching), but a mistake that can be explained easily enough by the general correlation between how closely one cooperates, and how much damage one’s cooperation does.
Second, Professor Lederman suggests that religious employers’ involvement will not lead to more acts of the conduct condemned as immoral. We agree that most people who would have used their employers’ plans to pay for contraceptives will obtain them otherwise. But if (especially large) employers who currently don’t offer such plans begin to do so, this will likely lead at least some to form the belief that their church’s teaching against contraception was not so serious after all, and rationalize using it when they would not have otherwise. Ditto, of course, for abortion drugs.
Third, Lederman asks whether our argument wouldn’t have the dubious implication that it is immoral cooperation with evil to (a) pay taxes that subsidize immoral practices, or (b) fail to forbid your employees to spend their salaries on products or activities the employer regards as morally bad. But if the signaling effects of material cooperation matter morally, then the concern about these examples essentially dissolves.
Thus, it is hard to believe that unless a small-business owner fires all employees who spend their salaries incompatibly with Catholic moral teachings, people would question his commitment to those teachings. Nor, again, does the employer’s role in the employee’s immoral spending risk eroding the employer’s emotional repugnance at those immoralities.
Similarly, though we should oppose the use of taxpayer funds for immoral practices and seek legislation to end it, paying taxes is (in most cases) many orders of magnitude less likely to be taken by others as an endorsement of all the government’s ends. (It’s also relevant that each individual’s taxes make a nearly infinitesimal causal contribution to any particular act of wrongdoing.) So you are (ordinarily) much less likely to give scandal or undermine your witness to certain moral principles merely by paying taxes, than Catholic Charities or the University of Notre Dame is by obtaining for its employees insurance policies by which they can cover abortion drugs. This is only more apparent in light of the fact that people (rightly) hold religious entities to higher standards of authenticity, and take deviation from their own teachings (especially the demanding ones) as especially strong evidence of unseriousness about them.
Furthermore, as we took for granted, any judgment about whether to accept certain side effects of a choice will depend on the side effects of the available alternative choices. The side effects of a general policy of firing anyone who ever uses his salary for ends an employer considers immoral—from buying lottery tickets to contributing to the Republicans (or Democrats) to eating meat—would, for many reasons, be disastrous. -- Sherif Girgis and Robert George
A few thoughts in response to Marty's post, from a few days ago, and to those others who have pressed, in defense of the mandate, the argument that the mandate is basically the same thing as a school-voucher program (in terms of burdening objectors' consciences).
I agree with Marty that there is no moral or religious-liberty right to object to paying (that is, to opt out of) taxes on the ground that the government, whose operations are in part funded by those taxes, does things to which one objects on religious. (So, Flast v. Cohen is wrong.) I think Marty and I also agree, though, that a situation in which the government says to A, “take some of your money and pay for X activity,” to which A objects on religious grounds? In my view, the original mandate (which, despite Friday’s announcement, is still the law-on-the-books) is more like the latter situation than the former (while the voucher question is more like the former). The question is whether the announced (but not yet enacted) change to the mandate moves the situation closer to the former.
I also agree that it should take something more than the assertion “X policy substantially burdens my free exercise of religion” to establish that X actually does, for RFRA purposes, burden the speaker’s free exercise of religion. But, what is that “something more”? We agree, I think, that RFRA-interpreting courts can inquire into sincerity, but can / should they inquire into the theological merits of the assertion? So, if Catholic Institution Inc. asserts that “it believes” complying with the mandate would substantially burden its free exercise of religion – in part because of its understanding of cooperation-with-evil analysis and categories – should the fact that there are prominent Catholic theologians and ethicists who say “no, actually, cooperation with the mandate would not be culpable” matter?
Marty Lederman sends in the following response to Robby's column (Marty is having difficulty posting comments, and it seemed to me that this one is responsive more to Professor George's piece than to my post).
If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes:
Bob and Steve both suggest, in recent posts, that we should not be too hard on the Obama administration for its insensitivity to religious freedom (an insensitivity that, in my view, is established by the at-least-clear-and-convincing evidence of the Hosanna-Tabor brief and the HHS mandate, which is -- notwithstanding Friday's announcement -- still the law), because Justice Scalia, in Smith, was insensitive to it, too.
Obviously, like any human being, Justice Scalia makes mistakes. However, as Bob and Steve know, the comparison between (1) an interpretation according to which judicially-created accommodations from generally applicable and neutral laws are not required by the First Amendment, but legislative accommodations are both permissible and welcome (i.e., Justice Scalia's view in Smith), and (2) a decision by a political actor to refuse an accommodation (or to grant an inadequate one) that the Constitution clearly would allow, even if it does not require, misses a lot that matters. Smith, to repeat, is not hostile to exemptions, but to judicial second-guessing of the balance struck by the political process. The case welcomes (as has Justice Scalia in other cases) accommodations; the President, and his supporters, seem to regard them as presumptively unjustified, and warranted only to the extent the need to tamp down political firestorms requires.
So, contrary to Steve's suggestion, there is no "irony" in conservatives' expression of regret over the mandate (and over whatever modifications to it Friday's announcement might bring). More striking, to me, than this non-irony is the apparent fact that those of Obama's Catholic supporters who (to their credit) were willing to "call out" the Administration for the arrogance displayed in Sec. Sebelius's handling of the mandate seem to have been satisfied by an announcement that (i) does not repudiate the administration's earlier insistence that the original (and still operative) form of the mandate reflected an appropriate respect for religious freedom; (ii) still will require religious employers to bear the cost (though perhaps slightly less directly) of employees' abortion-causing drugs; (iii) does nothing to revise the very narrow religious-employer exemption, which was the target of these supporters' (strong, in some cases) criticism; and (iv) seems so obviously calculated simply to shore up the base, and quiet down the critics, for the few months that remain between now and the election. Indeed, these supporters seem -- to my great regret -- to have returned enthusiastically to the tired and sad script according to which those Catholics who persist in thinking that President Obama is not, well, awesome are nothing more than bad-faith hacks, partisans, and moral unsophisticates. Too bad.
Prompted by Bob Hockett's characteristically thoughtful (and nicely focused) questions in his MoJ post entitled "Request for Clarification on Revised HHS Mandate," Sherif Girgis and I have written an article for Public Discourse entitled "Morals and Mandates." Here is a link: http://www.thepublicdiscourse.com/2012/02/4736. Readers who do us the honor of having a look, might while at the Public Discourse site also take a few minutes to read yesterday's article, by Matthew Franck, entitled "President Obama, the Right Not to Do Wrong, and the Politics of Ruse and Delay." I should note that Sherif and I composed our article before Rob Vischer's MoJ post entitled "Dazed and Confused (on the HHS Mandate)" appeared. I think, however, that the article makes some points and arguments that are relevant to Rob's very good questions about what the mandate does and how it is to be evaluated from the moral point of view.
I started to post this as a response to some of Rob's thoughtful questions, but the comment became long, so I am posting here. I am as puzzled by the new arrangement as is Rob. Rob says: "If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds)..."
I do not think one gets to this difficult question, for several reasons.
1. Why would a non-objecting employer or a non-objecting insured ever agree to foot the bill for other people not on its employment roll? Or for employers with whose beliefs it may vehemently disagree (and might not that, in turn, give rise to a possible conscience objection?), and in a situation where the objecting employer was paying nothing? That seems wildly unlikely to me. Non-objecting employers using the same insurance company as the objecting employers would almost certainly object strenuously to this. If their objections were not heeded, wouldn't they seek other insurers? I suppose this may depend on a cost/benefit assessment, but it seems implausible to think that the cost would be borne only by non-objecting employers. And how could the government compel that sort of arrangement, even if that's what it intended (also, in my opinion, not likely)?
2. It also seems implausible that the insurer would provide the services "for free." Let's put aside the canard about whether the coverage of contraceptive services is "revenue neutral," as this is an irrelevancy about whether the insurer will in the end make money from covering these services. I think Bob Hockett in one of his posts below suggested that one possibility is that the insurer might make a separate insurance "contract" with the insured, for providing these services. That seems unlikely to me, for two reasons. (A) A contract in which one side provides products for free to the other side doesn't seem to me to be a contract at all, as there is no consideration. It's a gift and therefore unenforceable. (B) Nobody has suggested that a separate contract between insurer and insured is an option. What we are talking about is that the religious employer pays for a policy in which products as to which it has a conscientious objection are included as part of what it is paying for, even if (now) not listed on the terms of the policy that it provides to the employee.
3. On the last point, I cannot see my way through to any other conclusion than that the religious employer will be paying for these services. It will pay for them by procuring its insurance contract. And it will pay for them in the form of increased premiums (again, whatever may ultimately be the case for the insurer's bottom line). I am not familiar with what an insurer is required to disclose to an employer about the reasons for an increase in premium. But it would surprise me if the insurer needed to say to the employer, "We hereby increase your premium by X in order to cover the costs of contraceptive services which we must now provide to your employees." But whether the terms of the premium increase are explicit or implicit, I am having difficulty escaping the conclusion that it is the employer who will be paying.
UPDATE: Having read Robby's helpful discussion above, which analyzes what the insurer needs to do as making an "offer" which the employee can then "accept," I thought to reemphasize those features traditionally necessary to make a contract: offer, acceptance, and bargained-for consideration. As a general matter, there is no contract without the last component. But in Robby's description, the offer and acceptance are incident to the insurance contract proper itself. So the bargained-for consideration is the money that the employer has paid to procure the policy. That's as it had to be, of course, since a separate contract would require separate consideration, and could not be procured for free.
I confess that I remain confused about President Obama's proposed "compromise" on the HHS mandate. It seems to me like it might do more than nothing, but not a lot more than nothing. Let's put to the side the issues created by the administration's failures 1) to exempt self-insured employers from the contraceptive mandate; 2) to exempt religiously affiliated insurance providers. For objecting employers who rely on outside insurance providers, I still have questions:
If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds), and if the transaction by which the contraceptive coverage is procured would take place without any communication or action by the objecting employer, would the revised Obama rule still be objectionable? It seems like the risk of scandal is lower, but that's not the only consideration, I realize. What would the precise objection be under that scenario?
If the answer is yes, to what extent does the remaining objection turn on whether any universal access to contraception is objectionable? In other words, would the same objections persist if the government agreed to pay the cost of contraceptive coverage? If not, what is the difference between an insurer paying for the coverage and spreading the costs among all insureds versus the government paying for the coverage and spreading the costs among all taxpayers? Is the difference only one of degree?
The initial HHS rule was so egregious that it was easy to criticize it without getting into deeper questions about the goods and services covered -- e.g., whether contraception should be considered as a core element of "health care," whether some of the covered drugs cause abortions, etc. Judging from how the debates have been unfolding since Friday, it seems (to me) that some of those deeper questions are coming closer to the surface. That's not necessarily a bad thing, but does it suggest that President Obama's strategic move on Friday has made the straightforward religious liberty argument less obvious?
If you want to take a step back from the contraception mandate, here's an interesting reminder of some of the more basic questions underlying our country's approach to healthcare, a short essay to be published in Harvard's Journal of Law & Public Policy by George Mason's Neomi Rao. The abstract:
The concept of human dignity provides a useful reference point for evaluating American exceptionalism in the context of welfare rights. Since World War II, human dignity has emerged as the preeminent value in many modern constitutions and various human rights documents. Particularly in countries that have extensive welfare states, dignity is often about being part of the community, being protected and provided for by the government. In America, however, political and legal discourse link dignity with individual rights and freedom from interference by the State. In this short Essay I explain how different concepts of dignity reflect fundamental disagreements about welfare rights and highlight aspects of American exceptionalism. The traditional American conception of human dignity may resist welfare rights, as can be seen in the current debate about whether and how government should expand healthcare coverage.
