I've a quick question for Rick, Robby, Carter, and others of my friends who have signed the forceful letter to which Rick and Robby have referred this morning. I pose it because I do not yet know what to make of or opine in respect of Friday's 'walkback' announcement, and could use assistance in coming at least to a provisional verdict.
For present purposes, I can envisage two distinct scenarios that the revised HHS mandate might, well, mandate. (If there are alternatives that I ought to be considering, do please somebody let me know.)
Per one such scenario, a religiously affiliated employer is required, like all other employers under the ACA, to purchase one health insurance policy covering all of its employees, which policy covers contraceptive pharmaceuticals and devices. The employer is then 'accommodated' (which term I believe stems from the Surpeme Court's Amish-defending Wisconsin v. Yoder decision of 1973, right?) by not being required to inform its employees of the latter coverage, that role being assigned to the insurance company.
Per the other such scenario that I envisage, the religiously affiliated employer is accommodated a la Yoder by being required, unlike other employers, to purchase a policy for its employees that need not cover contraceptives, while the insurance company is then separately required to provide to the same group of employees a second policy that does cover contraceptives.
The first scenario, which the present wording of the aforementioned letter appears to me to suggest is the actual scenario with which Friday's White House announcement presents us, would seem pretty clearly to warrant the damning language employed by the letter, if not indeed worse. For it then would amount not even to anything so exhalted as an 'accounting gimmick,' but instead to a mere 'speak no evil ['evil' being defined by the institution]' allowance.
One can imagine variants of the second scenario, by contrast, that might well not warrant such criticism as that offered by my friends' letter, at least not absent an account of what sorts of accounting arrangement constitute mere gimmickry devoid of moral substance and what sorts do not.
(I have, for example, since well before the Supreme Court effectively constitutionalized the argument, often defended flows of education and health grant funds from the public fisc to religiously affiliated schools, hospitals, and other social service organizations as consistent with non-establishment, on the ground that, accounting-wise, they amounted to equal pro rata shares provided for the benefit of the clients of these institutions, which equality rendered the clients' choices 'intervening' choices of precisely the sort that 'cleanse' government funds of 'endorsement' significance.)
Might Rick, Robby, Carter, or somebody else here, then, clarify for me (a) whether the revised mandate mandates some such scenario as the first I described rather than the second, and (b) where I might find detailed verification of this if indeed it does? If, instead, the revised mandate mandates some variant of the second scenario that I described, might somebody clarify for me (c) what the particulars of the variant are, (d) where I might find those, and (e) whether any variant on this second scenario would be permissible in their view?
I pose the last query - (e) - partly because, if the answer is no, I might have to abandon an argument that I quite often employ in defense, against what I currently believe to be spurious 'establishment' charges, of public funds' being directed to religiously affiliated schools, hospitals, and other social service agencies.
I pose the full set of queries - (a) through (e) - because I wish both to come to an informed judgment of the HHS mandate, and to ensure that I hold a coherent general account of how we as a nation might maintain our eclectic amalgam of mixed public-private social insurance and safety net provision on the one hand, without running aground on the Scylla of establishment or the Charybidis of curtailed free exercise on the other hand.
(Apropos this latter point, by the way, it is tempting once more to suggest that direct public provision of health insurance might solve the conundrum where health care is concerned much as does public provision of education, pension insurance, and unemployment insurance funding where those public goods are concerned. (It is, after all, still yours truly who is writing this, still smarting over the Administration's never having seriously pressed for 'single payer' or, it seems, the 'public option' as it ought in justice to have done.)
Many thanks.
When I read an or so ago that the Obama Administration this morning announced that it's done "negotiating" the terms of the HHS mandate, the following passage in D. Stephen Long's book "The Goodness of God: Theology, the Church, and Social Order" (Eerdmans, 2001), seemed to speak to the issue:
"Beginning with the flesh of Jesus and its presence in the church, theology alone can give due order to the other social formations -- family, market, and state. The goodness of God is discovered not in abstract speculation, but in a life oriented toward God that creates particular practices that require the privileging of certain social institutions abover others. The goodness of God can be disocvered only when the church is the social institution rendering intelligible our lives . . . . For a Christian account of the good, the church is the social formation that orders all others. If the church is not the church, the state, the family, and the market will not know their own true nature."
When the *unanimous* U.S. Senate declared in 1797(in Article XI of the Treaty of Tripoli) that "the Government of the United States is not, in any sense, founded on the Christian religion," that was a pretty good sign (not that another one was needed even then) that here in America the Church was not going to be allowed to be the Church. Just how little the Church would be allowed to be the Church in America has taken a little while to come completely to light, but now that it has, we Catholics and other Christians should not allow ourselves to be too surprised. Sad, demoralized, outraged at the particular lies that were launched from Notre Dame (and elsewhere), and, of course, rudderless except for the impressive recent showing on the part of the U.S. Bishops and some others, but by no means surprised. Even J.C. Murray worried over the future of this problem.
A letter, signed by a hundred or so academics, activists, journalists, clergy, and others, explaining why what is being described in the press as a "compromise" on the HHS mandate does not cure the religious-liberty difficulties with the relevant policy is available here. Those signing include Mary Ann Glendon, John Garvey, Jean Bethke Elshtain, John Cavadini, Robert George, and many others. Check it out.
Here is the text of a statement on the "accommodation" for religious institutions proposed by President Obama in the wake of the firestorm over his administration's mandating of employer coverage of abortion-inducing drugs, sterilizations, and contraceptives. The statement, drafted by John Garvey, Mary Ann Glendon, Carter Snead, Yuval Levin, and myself, rejects the accommodation as a mere accounting trick that does nothing of moral substance to eliminate the mandate's unjust, and, we believe, unconstitutional, imposition on religious freedom and the rights of conscience. We have been joined by dozens of scholars, university presidents, and others, including Michael McConnell of Stanford Law School, Donald Landry of Columbia Medical School, Jean Bethke Elshtain of the University of Chicago, Rabbi Meir Soloveichik of Yeshiva University, Larry Alexander and Steven Smith of the University of San Diego Law School, Gilbert Meilaender of Valparaiso, my Princeton colleagues John Londregan and Thomas Kelly, and Gary Anderson, Rick Garnett, Gerry Bradley, and a large number of other leading members of the faculty from many disciplines at the University of Notre Dame. A complete list of signatories can be found here: http://www.becketfund.org/wp-content/uploads/2012/02/Garvey-Glendon-George-Snead-Levin-stmt-Feb-11-2012.pdf
Unacceptable
The Obama administration has offered what it has styled as an “accommodation” for religious institutions in the dispute over the HHS mandate for coverage (without cost sharing) of abortion-inducing drugs, sterilization, and contraception. The administration will now require that all insurance plans cover (“cost free”) these same products and services. Once a religiously-affiliated (or believing individual) employer purchases insurance (as it must, by law), the insurance company will then contact the insured employees to advise them that the terms of the policy include coverage for these objectionable things.
This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy. It is certainly no compromise. The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust. Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services.
It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage. For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers. More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual. They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.
It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer. It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer. What matters is what services the policy covers.
The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.
Finally, it bears noting that by sustaining the original narrow exemptions for churches, auxiliaries, and religious orders, the administration has effectively admitted that the new policy (like the old one) amounts to a grave infringement on religious liberty. The administration still fails to understand that institutions that employ and serve others of different or no faith are still engaged in a religious mission and, as such, enjoy the protections of the First Amendment.
Saturday, February 11, 2012
There has been some discussion about what it is that would make a "burden" qualify as "substantial" under the terms of the Religious Freedom Restoration Act. I had a thought about this that I wanted to try out here. It seems to me that the gravity of a burden is frequently intimately connected with the centrality, or importance, of the belief that is felt to be burdened: the more central, or important, the religious tenet or view, the greater the obligation that the claimant will feel in adhering to it, and the more substantial will be the burden felt by the claimant in having to endure not adhering to it. Yet RFRA eliminated the inquiry into centrality. That decision was, I think, intended to prevent courts from making judgments about (a) how important a belief was, in order to determine (b) how severe or substantial the burden was. One reason for eliminating the centrality inquiry was an establishmentarian concern; another was a concern about competence.
The difficulty is that the standard continues to be a "substantial" burden. That cannot only mean a burden as to which a claimant sincerely objects on religious grounds. But how would one determine a burden's substantiality without being permitted to inquire at all about a belief or practice's centrality, or importance? I'm not even sure what the inquiry would look like. And that may be why, in the RFRA case law, one tends to see a great deal of deference to the claimant about what constitutes a "substantial" burden in the first place (and cases often get resolved under the compelling interest leg) -- exactly because of the danger that an inquiry into the burden's gravity, or substantiality, can easily bleed over into an inquiry about the belief or practice's centrality, or importance, within the religious system. Sometimes one sees the statement that a substantial burden is one where the state puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Rev. Bd. But that only seems to restate a kind of subjective test -- how much pressure is "substantial pressure" will depend upon an inquiry about the nature of the coercion felt by the claimant in light of the religious belief's importance to the claimant. Pressure only matters if the belief is religious (not generally a question) and about something important...or central. That is, a claimant is sensitive to pressure if government is squeezing a pressure point. But because centrality is no longer a cognizable concern, we are necessarily left with a healthy measure of deference to the claimant's feelings about the quality of the burden. Thoughts?
The unsayable is said out loud at, of all places, Business Insider:
http://www.businessinsider.com/time-to-admit-it-the-church-has-always-been-right-on-birth-control-2012-2
I once heard the late Irving Kristol express the same heretical thought, privately, at a dinner at the American Enterprise Institute after a lecture I gave there.
I guess we'll now turn to evaluating the White House "compromise" on the mandate, but let me add a little to what others have said in comments responding to Marty Lederman's thoughtful inquiry why the mandate (at least pre-compromise) imposes a substantial burden under RFRA. I start with the Dana Dillon exchange that Marty mentions. As one participant there notes, insurance coverage of contraception has symbolic meaning: "[T]he refusal to provide contraceptive coverage is one of the (few!) ways in which the Catholic church as a whole can be said to be 'upholding' the Church’s teaching," given that it is not widely followed by the laity or widely promoted in homilies. This to me makes it easy to understand seeing the mandate as a serious burden. For the Church to be forced to give up this means of upholding the teaching would have a significant effect on a doctrine already under siege, and on the role of that doctrine in tying to the Church organizations whose affiliation with it is otherwise fairly loose. As others remarked in the comments, saying "we're doing this but we're against it" is insufficient because any claimant subject to a law has that option. (And needless to say, the fact that the teaching is currently followed--even articulated--very imperfectly in the Church is not a reason to find no burden; the institutional leaders should be able to decide when to man the barricades.)
We defer, within a pretty wide berth, to a religious claimant's argument that a government mandate forces her to violate her religious beliefs. (And we unquestionably have a mandate here, one very difficult to avoid, even compared to the most far-reaching state version.) U.S. v. Lee found a burden on the Amish in a similar context, as Kevin Walsh remarked in the comments. And Thomas v. Review Bd., the case about the Jehovah's Witness making parts ultimately used in tanks, likewise deferred to a claimant's understanding of the degree of connection that constitutes cooperation. This question cannot be reduced to microeconomic analysis (under which many, many things could be said to have some effect--or not enough--because money is fungible). It can't even be reduced entirely to moral-theology hypos about cooperation with evil. The importance of symbolic elements justifies substantial deference to the claimant's judgment on when a mandate like this--again, unquestionably a mandate--conflicts with its claimant's beliefs.
Finally, I don't think that the "intervening private choice" analysis from the voucher ruling applies here, as Marty suggests, to say there's no burden. The taxpayer's connection to the ultimate voucher expenditure is far less significant than the employer's connection to employees' decisions to use coverage. First, there are millions more taxpayers in a state than there are employees for any religious employer. Second, unlike the taxpayer, the employer has to include something in an actual policy of its own, has to respond to inquiries by saying that it does cover contraception--even unwillingly--and so forth.
