A story about the HHS mandate, the religious-freedom objections that have been raised, and the two pending lawsuits about it, is here.
Tuesday, January 17, 2012
Inside Higher Ed.: "Battle over Birth Control"
The President's Religious Freedom Day proclamation . . .
. . . is here. In his proclamation, the President "call[s] on all Americans to commemorate this day with events and activities that teach us about this critical foundation of our Nation's liberty, and show us how we can protect it for future generations at home and around the world." I like to imagine that he hand delivered a special copy to those responsible for the government's brief in Hosanna-Tabor. (I kid, I kid! Well done, Mr. President.)
Great news out of Indiana
A trial court has rejected the predictable-and-expected constitutional challenge to Indiana's groundbreaking new school-choice law:
. . . Marion Superior Court Judge Michael Keele said the School Choice Scholarship program doesn’t violate the state constitution because the state isn’t directly funding parochial schools. Instead, it gives scholarship vouchers to parents, who can choose where to use them. That was essentially the argument made by the program’s supporters. . . .
Monday, January 16, 2012
Martin Luther King Jr.'s theology of action
My current project looks to draw insights from Martin Luther King Jr.'s theological claims by which to better critique the presumptions underlying the predominant narrative of the modern legal profession. The core of that insight flows from King's belief in the inescapably social nature of the human person.
The accessibility of King’s anthropological claim is magnified by the fact that King did not require agreement “all the way down” in order to join in the struggle to see the moral implications of the anthropological claim lived out. King worked out those implications within a particular worldview, and the theological and philosophical sources of King’s worldview are not as widely accessible as the resulting claims themselves. This does not make the sources marginal to King, for his moral claims could not have been formed in a vacuum, apart from those sources. But King did not ask his listeners to embrace all of his sources (though many did); he asked listeners to embrace the moral claims themselves. Whether or not someone in the 1960s would have shared King’s admiration for Walter Rauschenbusch’s interpretation of the Old Testament prophets, for example, they could have understood, appreciated, and (in most cases) affirmed King’s resulting exhortation to resist Sheriff Bull Connor’s violent suppression of peaceful protests in Birmingham. In this regard, King’s moral claims were embodied in action.
To illustrate Christians’ tendency to pay only lip service to justice, he told a story about visiting an imaginary city where no one wore shoes even though it was cold and snowy. He asks a local resident why no one wore them:
“But what is the matter? Don’t you believe in shoes?”
“Believe in shoes, my friend! I should say we do. That is the first article of our creed, shoes. They are indispensable to the well-being of humanity.”
“Well, then, why don’t you wear them?” said I, bewildered.
“Ah,” said he, “that is just it. Why don’t we?”
After I checked in the hotel I met a gentleman who wanted to show me around the city . . . [and pointed to a huge brick structure] “You see that?” said he. “That is one of our outstanding shoe manufacturing establishments!”
“A what?” I asked in amazement. “You mean you make shoes there?”
“Well, not exactly,” said he, “we talk about making shoes there, and believe me, we have got one of the most brilliant young fellows you have ever heard. He talks more thrillingly and convincingly every week on the subject of shoes. . . . Just yesterday he moved the people profoundly with his exposition of the necessity of shoe wearing. Many broke down and wept. It was really wonderful!”
“But why don’t you wear them?” said I, insistently.
“Ah,” said he, “that is just it. Why don’t we?”
In tracing King’s intellectual legacy, it is important not to lose sight of the fact that his was a theology of action. He was not interested primarily in theology as a theoretical inquiry or systematic explication. King’s passion was a rigorous exploration of theology as applied. History’s narrative did not call for his cognitive assent; it called for his active participation. In most situations, King’s moral worldview was discernible primarily through the courses of conduct he embarked on directly or recommended to his audience; he did not spend much time in his ministry debating the fine points of philosophical or theological theory. King cared less about how a person arrived at her commitment to justice as long as they arrived at it somehow. Because action follows from commitment, the path of commitment matters greatly to the actor herself, but King never espoused a particular path as a litmus test for participating in the struggle for justice. The protest march photos of King locked arm in arm with leaders from various religious and political traditions bear witness to this fact.
By the same token, lawyers are not hired to opine on prevailing currents in academic thought; if their worldview is going to matter, it has to matter in the world of concrete action items. For example, the mammoth (and now defunct) energy futures trading company, Enron, focused relentlessly on share price – to the exclusion of any more fulsome measure of corporate well-being and accountability. This narrow conception of self-interest stands in tension with a variety of moral truth claims and traditions. From whatever perspective Enron’s lawyers would have approached the problem, though, it was important for them to flag for management the concern that the company was neglecting its broader responsibility to constituents. The lawyer’s moral framework is both more efficacious and more accessible to the extent that it expresses itself in the world of action. King is a powerful model on that front.
Friday, January 13, 2012
Marc's question about the judge
The discussion sparked by Marc's question about a judge who on moral grounds declines to perform same-sex "marriages" is interesting and instructive. I gather from it that those who support redefining marriage to include same-sex partnerships are now prepared to state publicly that, once marriage is redefined, those Catholics, Evangelical Protestants, Eastern Orthodox Christians, Latter-Day Saints, Orthodox Jews, Muslims, and others who cannot, in conscience, participate in ceremonies to unite partners in homosexual relationships should be excluded from certain offices and opportunities, including judgeships. They no longer claim, if they ever did, that redefining marriage will not affect the lives, liberties, and opportunities of those of their fellow citizens who reject, on religious and moral grounds, their understanding of marriage and sexual morality.
I further gather, then, that everyone would consider it fair game for this fact to be shared with the citizens of North Carolina, Minnesota, and other states that are considering whether to enshrine in their state constitutions, as many states already have done, the conjugal conception of marriage as the union of husband and wife. So, for example, an ad would be regarded as completely truthful if it said:
Do not believe anyone who tells you that the redefinition of marriage is purely a libertarian issue that will have no impact on those who hold traditional beliefs about marriage and sexual morality. Many supporters of same-sex marriage themselves now admit that redefining marriage as they propose would in some cases affect the lives and limit the liberties and opportunities of those Christians, Jews, Muslims and others who reject same-sex sexual partnerships on moral and religious grounds. For example, they say that a Christian, Jew, or Muslim (or anyone else) who cannot in conscience perform a same-sex marriage should not be eligible to serve as a judge, or, if such a person does serve as a judge, he or she should not be permitted to officiate at marriages at all if he or she will not officiate at same-sex ceremonies. In fact, if you believe what the Catholic Church, Evangelical Christianity, Eastern Orthodoxy, the Mormon faith, Orthodox Judaism, and Islam all teach about same-sex sexual relations, those who want to redefine marriage regard you as a bigot. They think that your belief in marriage as uniquely the union of husband and wife is equivalent to opposing interracial marriages. If they have their way, and marriage is redefined, you and those who share your views will be treated the way we treat racists. We don't put such people in jail for holding or expressing their opinions, but there are certain offices from which we exclude them and certain opportunities we deny them. Are you a devout Catholic, for example, who would like to be a judge? Sorry. Your belief in your Church's teaching makes you unfit to serve. "No Catholics need apply." That's something worth keeping in mind when you go to the polls on November 6th.
An Augustinian Cardinal
An important, but, I think, sometimes neglected aspect of the mission at many Catholic universities is fostering an appreciation for the wider accomplishments of Catholic intellectual life and of the sponsoring religious order. There is special reason for those of us at Augustinian institutions such as Villanova to celebrate because among the new cardinals announced by Pope Benedict XVI last week is Father Prosper Grech, OSA, the noted Maltese biblical scholar, co-founder of the Augustinianum in Rome, and the first Augustinian friar in over a century to be made a cardinal. (And the Jesuits can celebrate the elevation of Father Karl Josef Becker, SJ.)
More thoughts on the ministerial exception and the "two realms"
On a Law and Religion-related listserv, a colleague wrote -- commenting on the AALS "hot topics" panel dealing with the Hosanna-Tabor case -- that:
Although only mentioned once on the panel, I think the worldview at stake
>> was the “two realms” understanding—that the State and the Church operate
>> in separate domains. But there are problems with this view. First, we as
>> a society do not really believe it. The King’s criminal law now reaches
>> into the churches, fortunately, and a capitalist society will always
>> ensure that ministers’ contracts are honored by churches, in court if
>> necessary (as the Court in Hosanna-Tabor predictably reserved).
>>
>> But neither do religious believers accept the two realms. For separate
>> realms can also mean marginalization of religion into a private space.
>> The next time believers want a national motto with the word God in it, the
>> objection will be raised that State and Church are indeed separate, as the
>> ministerial exception seems to imply.
I wrote, in response:
These are deep and interesting questions. For what it's worth, I don't think the only or best alternative to a "warranted for prudential reasons carve-out from the state's otherwise applicable authority" view of the ministerial exception is an "absolutist" "two realms" model. I *do* believe that a whole lot of our history is the story of the working out of, evolution of, wrestling with, and attacks on the Gelasian "two there are" description, but part of that story is (obviously) the development of nation-states and constitutional liberal democracies. As I see it (I think!), my colleague Bob Rodes' use of the term "nexus" to describe church-state relations is helpful, and maybe describes things both more accurately and more attractively than, say, "two [temporal] realms." In any event, I think we can (and should) say that the older, not entirely supplanted model lives on in the idea that political authority is limited in (at least) two ways: constitutionally (through structural features with which we are familiar and also through Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that there are other legitimate authorities and societies, besides political authorities and societies. This is not absolutism -- it does not absolutize either the liberal state or the "two realms" image -- and it's not even "autonomy" in a full-blown sense, but it is pluralism. And, as Mark DeWolfe Howe suggested, way back when Kedroff was decided, our Religion Clauses and Constitution *can* (still) be understood in a way that's consonant with this pluralism. The "ministerial exception" is usefully thought of, I think, a still-relevant manifestation of this pluralism (rather than, again, only a concession made by the state for the state's own reasons). Figuring out what exactly the content and contours of this manifestation should be, in terms of legal doctrine and methodology, should be is, no doubt, a challenge, and reasonable people will disagree about it. But, I think the Court was right to emphasize the *right* -- the authority -- of religious communities to select those who will "personify" their teachings and faith.
Can a Judge Refuse to Conduct a Gay Marriage?
Here's one right in the Vischer wheelhouse. This is the question that an anonymous New York judge asked the New York Judicial Ethics Committee. In this judicial ethics opinion, the Committee largely did not answer it, though it did opine that the judge could choose to conduct only those weddings of his relatives and friends. That would be tantamount, in the Committee's view, to refusing to conduct marriages "on a facially neutral basis" and the Rules Governing Judicial Conduct do not require a judge to conduct weddings.
Wednesday, January 11, 2012
More on Hosanna-Tabor
A couple more thoughts on the huge victory for institutional religious freedom in Hosanna-Tabor. Although the majority opinion holds only that Perich was a "minister" under these facts--teaching religion classes, sometimes leading worship, holding a "commissioned" title after a period of theological education--the impact and signals are broader.
First, when you win on the facts of a case, you typically also get language earlier in the opinion that supports your side more broadly. Conversely, if you lose on the facts, you often also get stuck with broad negative language earlier in the opinion. Here the broad language in favor of institutional religious freedom includes not only the ringing historical and doctrinal affirmation of the ministerial exception. It also includes the passage distinguishing away Employment Division v. Smith. That decision, the Court said, only allowed upheld neutral prohibitions of "physical acts" (like peyote ingestion), not "government interference with an internal church decision that affects the faith and mission of the church itself." Although those two categories don't match each other well, the point is: the Court distinguished Smith not on the narrow ground that Title VII suits would unconstitutionally entangle judges in religious determinations, but on the broader ground that religious organizations have a constitutional right to choose their leaders and even a broader right to make "internal ... decision[s] that affect [their] faith and mission." These phrases suggest many possibilities for constitutional arguments, even if we don't know they'd be constitutional victories.
Second, although the majority is case-specific on who counts as a minister, three justices--including Elena Kagan!--endorse a broader definition. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or "commissioned" status isn't crucial, that the question is about religiously-significant functions (listing several of them), and that "the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities." (Concurrence at 8) I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide. With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority. Hosanna-Tabor doesn't give us a full-fledged broad definition for a "minister," but it makes the route to such a definition much easier.
Hosanna-Tabor: Freedom of Religion (Not Merely Association) and a Note about Defenses
Following on Rick's and Marc's posts, today's decision in Hosanna-Tabor is a resounding vindication of church autonomy (interestingly, a phrase that appears prominently in the concurrence by Justices Alito and Kagan) and religious freedom. Congratulations to Doug Laycock, who adds a litigation win in this major religious freedom case to his remarkable scholarly career. Two offhand things to note:
1. The Court (correctly, in my view) utterly rejects the view of the Obama Administration and some amici (see my earlier post here) that the right of religious institutions to select their own ministers isn't protected under the Religion Clauses and (what little is left of such a right) could instead be protected under the freedom of association. Chief Justice Roberts doesn't spend much time on how or why churches aren't just like the Boy Scouts (to adapt a phrase from Rick), and filling out the argument here is an important and ongoing scholarly task:
The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right "implicit" in the First Amendment. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.
We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.
2. I still think Greg Kalscheur's argument that the ministerial exception is best understood as a subject matter jurisdictional defense is profoundly right, but the Court's opinion drops a footnote resolving the circuit split and states that the ministerial exception is instead an affirmative defense (slip op. at 20 n.4). But I suppose it's a great day for religious freedom when one is left only to nitpick over the distinction between a jurisdictional bar and a defense on the merits.
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