The Center for Law and Religion is delighted to announce that Professor Cathleen Kaveny (Notre Dame) will visit us at St. John's Law School next Monday, February 13, at 4:15. Hers is the second session in our ongoing seminar, Colloquium in Law: Law and Religion. Cathy's very interesting paper is titled, Love, Justice, and Law: The Strange Case of Watts v. Watts. Academics in the New York area and beyond are welcome to attend. Please contact me if you wish to do so.
Wednesday, February 8, 2012
Cathy Kaveny at St. John's Law School
The Beginning of a Walk-Back on the Contraception Mandate?
The White House seems to be taken aback by the negative reaction to its refusal to accommodate in the contraception mandate. As both Anthony Picarello (USCCB general counsel) and my wife said today, when Chris Matthews calls President Obama way off base, the President's in trouble. According to one report, administration officials interested in a compromise are thinking of a broader exemption but with a requirement, similar to the Hawaii statute that Melissa Rogers described last fall, that
religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternate ways for enrollees to access coverage for contraceptive services. Hawaii law also requires health insurers to allow enrollees in a health plan of an objecting religious employer to purchase coverage of contraceptive services directly and to do so at a cost that does not exceed ‘the enrollee’s pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.
It would be nice if insurers were called on to take up the slack here, instead of objecting religious organizations. As to "describing alternate ways" of access ... As I blogged before, the idea of requiring religious objectors to inform their employees about alternative access generally does not assuage conscientious objections: moral theology treats referring someone to the nearest abortion clinic as impermissible cooperation with evil. However, if a mention of alternatives were required, I wonder if it would be palatable if the alternative in question were the insurance company. Suppose what Catholic Charities must say upfront to employees is, "We do not cover premiums for contraception; for questions, see the insurance company directly at [phone number]." Would that be an impermissible referral, or would the generality of the language, and the fact that the insurer might be an obvious contact anyway, mean it's not impermissible? I'd be interested in others' answers to that question, because models like this may receive serious discussion soon.
More on Same-Sex Marriage and Religious Liberty in Washington State
Rick and I keep posting letters that our group of law professors has been writing, arguing to various state legislatures considering the recognition of same-sex marriage that they should also enact meaningful religious-liberty protections. It's not that we think readers want to see the details of each and every state's laws; we' re just keeping an archive of these letters. Here's the page compiling them all (it's also in the list of links at the bottom left of the blog). For some poor poli sci grad student slaving away on a dissertation in 2052....
So here is the latest, a followup to Washington legislators, who have expanded their proposed religious-liberty protection but left the protections incomplete and, frankly, wildly inconsistent between different sections.
Tuesday, February 7, 2012
9th Circuit Affirms Unconstitutionality of CA Proposition 8
Today, the 9th Circuit affirmed the District Court's finding that California's Proposition 8, overturning gay marriage in that state, is unconstitutional. We will be seeing more on this case. http://online.wsj.com/article/SB10001424052970204136404577209183209519256.html
Notre Dame -- Defender of Quality Church Music?
For those of you who have bemoaned the state of music in your run-of-the-mill Catholic parishes on these pages in the past: Here's an interview in the Chronicle of Higher Education with "two of the nation's best-known scholars in medieval church music", Peter Jeffery and Margot Fassler, husband and wife, hired by Notre Dame from Princeton and Yale Universities a few years ago. Jeffrey's response to the question of whether Vatican II contributed to a "decline in the quality of liturgical music in the Catholic Church":
The council did say the church valued all true art from any culture. However, what we've had is not so much the adoption of real traditions of music but the assumption that the only way to have congregational singing is to have pop songs written by amateurs. That has not produced a healthy tradition of congregational singing.
Fassler closes the interview with: "you know, it's right in Our Lady's wheelhouse to try to strengthen the life of the church through worship and music." I must have missed the wheelhouse when I taught there -- maybe it's down by the Grotto?
Failure of General Applicability in Iowa Road Protection Ordinance
Further to Marc's recent post on the taming of Employment Division v. Smith, the Iowa Supreme Court yesterday issued an interesting and thorough opinion in a case involving a challenge by a member of the Old Order Mennonite Church against a county ordinance prohibiting the use of steel cleats on tractors. The opinion was written for a unanimous court by Justice Edward Mansfield, a very able lawyer who was recently appointed to the Iowa Supreme Court by Governor Terry Branstad. Here is a bit from Justice Mansfield's opinion:
Upon our review, we find the County's ordinance lacks sufficient general applicability to bring this case under Smith. Section 321.442(1) is not a problem; it exempts farm machinery tires with protuberances, but only so long as they “will not injure the highway.” Such an exception is consistent with the stated purpose of protecting the County's roads. One could argue that sections 321.442(2) and (3) do not defeat the general applicability of the ordinance either. Although they allow the use of tire chains, ice grips, or tire studs, the exemptions are limited in scope (“reasonable proportions,” “not more than one-sixteenth inch beyond the tread of the traction surface of the tire”), and except for buses and emergency vehicles, in timing (“when required for safety because of snow, ice, or other conditions,” “from November 1 of each year to April 1 of the following year”). One could construct an argument, therefore, that the ordinance really serves a mixed purpose: It protects the roads from damage except when necessary for safety reasons.
Yet we believe the effort ultimately fails. School buses are allowed to use ice grips and tire studs year round. It is difficult to see how this secular exemption serves either of the foregoing dual purposes. Moreover, the County declined in September 2009 to regulate various other sources of road damage besides steel wheels. Rather, it chose to prohibit only a particular source of harm to the roads that had a religious origin. For example, although state law contains various limits on the overall weight of vehicles and also limits weight per inch of tire width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to cover these matters in its ordinance.
The underinclusion of the ordinance undermines its general applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated”(emphasis added)). We are convinced the underinclusion is “substantial, not inconsequential.” Lukumi, 508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497.
Religious Legal Theory: Religion in Law, Law in Religion
I am pleased to announce that the St. John's Law Review has published several papers from a symposium of the Second Religious Legal Theory Conference, which our Center for Law and Religion, directed by Mark Movsesian, organized and hosted (and for which compatriot MOJ-er Steve Shiffrin gave a wonderful keynote address). There are many excellent contributions, including a terrific keynote piece by Steve Smith, Nonestablishment, Standing, and the Soft Constitution, the text of which can be accessed at the link.
The publication occurs at an auspicious moment, as the Third Religious Legal Theory Conference will occur at Pepperdine Law School at month's end, under the auspices of the Nootbar Institute on Law, Religion, and Ethics, and with the able organization of Bob Cochran and Michael Helfand.
Suzy Ismail's powerful pro-life personal testimony
Princeton Pro-Life hosts an annual interfaith service in our University's magnificent chapel in observance of Respect Life Sunday each October. One of this year's featured speakers was my friend Suzy Ismail, an exceptionally gifted young Muslim writer. Today, Public Discourse has posted a powerful and moving essay by Suzy adapted from her Respect Life Sunday reflection: http://www.thepublicdiscourse.com/2012/02/4387?utm_source=RTA+Ismail+Life&utm_campaign=email&utm_medium=email. Believe me, this is worth reading, and quietly pondering. If you have pro-life Christian and Jewish friends who are unaware that many devout American Muslims are their strong allies in the cause, it would be good to share Suzy's article with them.
Monday, February 6, 2012
On Susan G. Komen v. Planned Parenthood
Notre Dame law professor Carter Snead and I have weighed in on the Susan G. Komen/Planned Parenthood controversy in an op ed piece in the Wall Street Journal:
Not from "The Onion"
Over at The Huffington Post, Bennett Gershman discusses Justice Holmes's (in)famous decree, in Buck v. Bell, that "three generations of imbeciles are enough." As I started the piece, I thought, "right on! HuffPo has its political leanings, clearly, but they are clear-eyed enough to see the troubling connections between the founding of Planned Parenthood and the early-20th-century eugenics movement. Good for them!" In fact, though, the piece's author is interested in, and worried about, the alleged connections between Holmes's view (and the eugenics movement generally) with today's "anti-choice" movement. He says nothing about the fact that the leading (and, perhaps, really the only) consistent voice against eugenics and its supporting ideology, before WWII, was the Catholic Church. He says nothing, at all, about the enthusiasm for eugenics [by Planned Parenthood's founder] Margaret Sanger. It's really one of the least self-aware pieces I can recall reading. He ends with this:
But Buck v. Bell has never been overruled, and the legacy of that case, albeit a footnote in constitutional law, is a brooding presence that continues to unsettle our national conscience. States may continue to express regret for what they did in the name of fraudulent science and social hypocrisy, but the stain really doesn't go away.
Indeed.
UPDATE: I revised the text above, to take account of the fact that, as a correspondent noted, Sanger often expressed opposition to abortion. That said, my strong impression -- formed after reading what I can find on the matter -- is that her opposition reflected primarily her concern that illegal abortions, at that time, were unsafe for women, that women were often pressured by men to have abortions, and that expressions of opposition to abortion were useful in gaining support for increased access to contraception. I do not think her record suggests any reservations, though, about the desirability of a move to legalized, safer abortions (or about the justifiability of abortion in the service of eugenics).
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