As one of the latest-added contributors to Mirror of Justice, I suppose it makes sense that I am among the last to post on the blog’s tenth anniversary. Who knows what the next ten years may hold for this blog? Given the continual changes in how legal analysis of the sort we offer is produced and consumed (e.g., Twitter did not come around until a couple years after this blog was started), it is hard to say. Rather than offer predictions, then, I would instead like to express my gratitude and hope.
Above all, I am grateful for the people of Mirror of Justice, by which I mean the entire Mirror of Justice community—not just the contributors but the blog’s regular readers and occasional visitors. As someone who has drifted from occasional visitor, to more regular reader, to commenter and “Friend of MOJ,” to contributor, I have long appreciated Mirror of Justice, and from a number of perspectives. Speaking personally, the perspectives from which Mirror of Justice has made the biggest difference for me were my former perspective from outside the legal academy looking in and contemplating whether to leave my firm, and my perspective now as an untenured law professor still trying to figure out the right mix of topics to write about and the best angles to approach them from. These perspectives have helped me to appreciate the personal courage and intellectual equanimity that I have observed on Mirror of Justice over the last ten years.
We all fall short of our aspirations sometimes (some of us more than others!), and blogs present spiritual dangers of their own. But this blog has been a more substantial source of sustenance for me than so much else that is out there. I am grateful for the many labors of love that have been lavished on Mirror of Justice in the last decade. They are evidence of the truth of Pope Benedict’s observation in Caritas in Veritate that “[l]ove—caritas—is an extraordinary force which leads people to opt for courageous and generous engagement in the field of justice and peace.”
Continuing to take my cues here from Caritas in Veritate, I am convinced that careful thinking about the law can provide “a service to charity enlightened by truth” and can “help give credibility to truth, demonstrating its persuasive and authenticating power in the practical setting of social living.” One of my hopes for Mirror of Justice is that it can provide that kind of thinking, with charity at its core.
Careful thinking about the law can, of course, take many forms. And just as there are many ways that it can be done well, there are also many ways in which it can go wrong. May God bless all efforts to get it right.
And now for something more specific: The inescapably controversial character of many of the topics appropriately addressed on a blog of this sort presents obvious difficulties with respect to both caritas and veritas. As someone who controverts (maybe too often), I do not believe that controversy in itself is an evil to be avoided. But I have often wondered how this blog might best be used for construction and not just criticism. Others’ tenth anniversary reflections have prompted a couple of thoughts along those lines that I’d like to conclude by sharing.
First, the concept of “Catholic legal theory” remains something of a difficult concept for me to grasp. Michael Moreland’s discussion of the danger of “extrincism,” together with reflecting about a project on Judge Posner and Judge Wilkinson that Marc DeGirolami and I have been working on for a while now, leads me to think that “Catholic legal theory” may not provide the best label for what Mirror of Justice may best be able to offer. In the essay quoted by Michael Moreland in his post, Michael Buckley contends that “the dynamism inherent in all inquiry and knowledge—if not inhibited—is toward ultimacy, toward a completion in which an issue or its resolution finds place in a universe that makes final sense.” That contention seems correct, and it should affect how we think about a blog devoted to “Catholic legal theory.” Perhaps we can do a better job at Mirror of Justice by not conceiving of the project as one of developing “Catholic legal theory,” as if this were one legal theory alongside others out there. With respect to constitutional law, for example, “Catholic legal theory” need not take the form of any one of the types of “Cosmic Constitutional Theory” criticized by Judge Wilkinson in his book of that title. Instead, we should recognize that Catholic thinking supplies something even more cosmic—knowledge and beliefs about the cosmos itself, and about the place of law in that cosmos. And just as one can navigate neighborhoods in one's town or city without thinking explicitly about the cosmos as a whole (consider commuting, for instance), one can navigate neighborhoods of the law without thinking explicitly about the cosmos as such. And maybe it would be worthwhile for us to do more of that: think as Catholics (or as Catholics would think) about various neighborhoods of the law, but without conscioulsy tying this thinking into anything explicitly Catholic.
The second thought, which stands in some tension with the first, is that it would be helpful to more directly address the jurisprudential underpinnings of American law from the point of view of Catholic thought. I hesitate to suggest this because theoretical jurisprudence has never been one of my strong suits. I am much more comfortable dealing with doctrine and probing the particularities of cases than I am in deciding who is right as between Jules Coleman and Ronald Dworkin. But I am convinced more than ever that neglect of the natural law tradition has left American legal thought unstably oscillating between impoverished positivism and impassioned emotivism. If I were stronger in jurisprudence, I could explain better what I was trying to say in that last sentence. But because that is not my strong suit, I will just say this: Read all of the opinions in Windsor and the lower court decisions purporting to “apply” it/them.
I do not think that better natural law reasoning or more perspicuous “Catholic legal theory” will make a difference today or tomorrow or any time soon in American constitutional law. If that were the case, a majority of the Supreme Court would have had the sense to at least recognize, as Justice Alito explained in dissent, that the Windsor majority was taking sides in “a debate between two competing views of marriage.” But I do think that the natural law tradition and Catholic thinking about the law more generally can help us recognize American constitutional law’s positivity for what it is, which would be no small thing. Or so I posit.
Thursday, February 6, 2014
Rick has already posted about the Linda Greenhouse op-ed on McCullen v. Coakley (the pending free speech challenge to Massachusetts special speech restrictions around abortion clinics) and Little Sisters of the Poor v. Sebelius (the RFRA/First Amendment/APA challenge to the contraceptives coverage requirements for nonexempt religious nonprofits). In thinking about these cases, Greenhouse discerns "sustained aggressiveness by religious groups that sense weakness in the executive branch and welcoming arms at the Roberts court." I tend to see more aggressiveness in the government actions being challenged--the state shutting down free speech and the Obama Administration forcing religious sisters to violate their religious conscience--than in the attempts by Eleanor McCullen and the Little Sisters of the Poor to defend themselves legally. But these are matters of opinion about which people differ. There are a couple of misleading claims in the op-ed, though, about which people should not differ and which I hope Greenhouse or the New York Times will clarify or correct.
The first misleading claim is factual. It is the answer to this seemingly simple question: How many pages is the form that a nonexempt religious nonprofit must sign to be eligible for the accommodated mode of complying with the contraceptives coverage mandate? Greenhouse says it is a "standard one-page form." But if the piece had included a link to the form itself, interested readers would have discovered that it is a two-page form. And if Greenhouse had looked at the second page of the form, she would have seen language that a nonexempt religious employer with objections to the mandate would find problematic. Consider, for instance, the language stating that "[t]his certification is an instrument under which the plan is operated." That language ensures that any contraceptives coverage arranged by the third-party administrator is part of the benefits package offered through the nonexempt employer's health benefits plan. Making the coverage part of that plan is one aspect of the government's scheme to provide comprehensive contraceptives coverage for employees of nonexempt employers. Greenhouse also would have seen reference to the obligations imposed by various federal regulations upon third-party administrators who receive executed copies of the government's form. These regulations obligate the recipient third-party administrator to arrange for coverage of all-FDA approved contraceptives. Greenhouse does not address these aspects of the form in her piece. The most charitable reading of her characterization of the form may be that she was thinking that employers would print out and submit the two-page form using the double-side setting on their printers. But that is not the most natural reading, and the piece is misleading as written.
The second misleading claim is legal rather than factual. This is Greenhouse's claim that the form at issue "sets the exemption machinery in motion." The form has nothing to do with the exemption from the contraceptives coverage mandate. "Religious employers" who are actually "exempt" do not need to fill out this form. The form at issue in Little Sisters of the Poor v. Sebelius is part of the machinery for the government's arrangement for nonexempt religious nonprofits.
Both of these should be non-controversial points. But they are not trivial. To miss the second page of the form is to miss legally operative language that causes the "accommodation" to be significantly different from (and in some ways the opposite of) an "exemption." And to describe as an "exemption" the path that applies only to nonexempt religious nonprofits is to get a key legal feature wrong.
Monday, February 3, 2014
The Oliver Wendell Holmes Devise lectures were delivered in 1960 by Francis Biddle. Published the next year in a slender volume Justice Holmes, Natural Law, and the Supreme Court, the lectures provide Biddle's defense of Holmes from "the assaults of certain Roman Catholic priests teaching in Jesuit law schools." A fair amount of the argumentative work done in the book is done by a simplistic reductive antithesis between "two points of view about the law and the proper approach to its application that are fundamentally opposed, and touch the roots of its life." These are the abstract moralism of Catholic natural law thinkers and the pragmatic empiricism of Justice Holmes. Biddle gets both of these schools of thought wrong, by simplifying natural law thinking and by denying some of the least defensible aspects of Justice Holmes's thought.
The impressions of Holmes that Biddle wishes to counter are that "Holmes was a cynic, who thought of law as nothing but the application of force; that he believed that morals, basically concerned, were but the expression of individual taste, and had nothing to do with law; and that he held that the proper function of a judge was to carry out what the majority had already decided, whether it was right or wrong." But these impressions are not far off the mark, if at all, as Albert Altschuler set forth in some detail in Law Without Values: The Life, Work, and Legacy of Justice Holmes.
Those studying Holmes are better served by Altshculer than by Biddle. But those interested in understanding a certain strain of anti-Catholic-intellectualism should check out Biddle. Here's a taste:
[Holmes] wished Malthus' teaching in its substance were more taken to heart. G.K. Chesterton, in his Victorian Age in Literature, probably because he was a Catholic, had to be contemptuous of Malthus; and Holmes wrote to his young friend Harold Laski that he was reminded of what Lord Melbourne had said--it had tickled him: "No one has more respect for the Christian religion than I have; but really, when it comes to intruding into private life---"
All good society rested on the death of men or on the prevention of the lives of a good many. So that when the Chief Justice assigned him the task of writing an opinion upholding the constitutionality of a Virginia law for sterilizing imbeciles he felt that he was getting near the first principle of real reform--although of course he didn't mean that the surgeon's knife was the ultimate symbol. . . . He was amused at some of the rhetorical changes in his opinion suggested by his associates, and purposely used "short and rather brutal words for antithesis," that made them mad. In most cases the difficulty was rather with the writing than with the thinking. To put the case well and from time to time to hint at a vista was the job. . . .
Friday, January 24, 2014
Late this afternoon, the Supreme Court issued the following order in the Little Sisters of the Poor case:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
(The title of this post comes from the title of the Becket Fund's press release on the order.)
Sunday, January 5, 2014
Until Justice Sotomayor granted emergency injunctive relief to the Little Sisters of the Poor on New Year’s Eve, very few in the media paid attention to their case. After Justice Sotomayor acted, however, regular courtwatchers and a lot of other media began to tune in. The speed of the transformation in attention has been astounding. Unfortunately, some commentary on the case has been based on an incomplete understanding of the regulations at issue and of the litigation landscape in these cases more generally. (Perhaps it should go without saying, but sources that rely on the Government’s response without discussing either the Little Sisters’ emergency application or the Little Sisters’ reply are particularly suspect).
Probably the biggest misconception about the case is that it is much ado about nothing, because the Little Sisters and Christian Brothers can simply exempt themselves from the Mandate. In the government’s words, “with the stroke of their own pen, [the Little Sisters and Christian Brothers] can secure for themselves the relief they seek from this Court—an exemption from the requirements of the contraceptive-coverage provision—and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either.”
The government's insistence that the Little Sisters just sign the form misses the point. Signing the form is part of the problem, not a solution. That is why the New Year's Eve injunction was necessary to protect the Little Sisters' religious exercise. In the words of the Little Sisters' reply quoted by Howard Bashman's post linking to it, the temporary injunction "saved Mother Provincial Loraine Marie Maguire from the choice of violating her faith by executing the government's required form, or exposing the Little Sisters' ministry to decimation by IRS penalties."
The government's position rests on an incomplete legal characterization of the form--EBSA Form 700--that the government wants to force the Little Sisters to sign. As Lyle Denniston has observed in a recent post at SCOTUSBlog, understanding this form is necessary to understanding the dispute.
The government's incomplete characterization of the form is that it is a simple opt-out form that does nothing but signal that the organization is claiming an exemption. Under law, the form does much more than that and something different than triggering an exemption. At minimum, the form is also an authorization for the Little Sisters’ third-party administrator (or TPA) to provide the coverage that the Little Sisters religiously object to providing themselves and for the TPA to be paid by the government for providing this coverage. Beyond an authorization, the form is also a directive that triggers the imposition of legal obligations, but the way it does that is a bit detailed for this post. The authorization point is easier to see because one does not need to scrutinize the Federal Register to find the obligation-imposing regulations that the form incorporates. Under questioning from a federal judge in a similar case, Reaching Souls, Inc. v. Sebelius, the government has already conceded that the form is an authorization for the TPA to provide coverage and receive reimbursement. The government's lawyer stated: "I will concede that the TPA is eligible--once--if they receive the certification, they are eligible for reimbursement. They would not otherwise be eligible." (See p. 96 of the hearing transcript in Reaching Souls, Inc. v. Sebelius.) And the fact that the form is an authorization for the coverage is exactly why Judge Friot (W.D. Okla.) describes it as a "permission slip" in Southern Nazarene University v. Sebelius.
In a blog post that discusses the government’s response to the Little Sisters' application (but not the Little Sisters’ reply), Michael Dorf has argued that the government’s arguments about the form are “devastating.” If that is so, one wonders why every other pending case involving a church plan similar to the Little Sisters' has thus far resulted in a lower-court injunction (some preliminary, some permanent). By way of contrast with Professor Dorf’s expressed understanding (following the government’s lead), consider the conclusion of Judge Rosenthal (S.D. Tex.) in East Texas Baptist University v. Sebelius:
The act of self-certification does more than simply state the organization’s religious objection to covering or paying for its employees to get emergency contraception. The self-certification act designates the organization’s TPA [that is, third-party administrator] as the TPA for contraception coverage. The act tells the TPA or issuer that it must provide the organization’s employees coverage that gives those employees free access to emergency contractive devices and products. That act tells the TPA or issuer that it must notify the employees of that benefit. ... But the self-certification form requires the organizations to do much more than simply protest or object. The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent. The form designates the organization’s chosen TPA as the administrator for such benefits and requires the organization’s chosen issuer or TPA to pay for the religiously offensive contraceptive services. The purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests.
I suggest that a careful and close reading of the regulations and the form itself (supplemented if one wishes by consideration of Reaching Souls transcript) will show Judge Rosenthal’s understanding of the scheme to be more reliable than the government’s (and Professor Dorf’s).
Tuesday, December 10, 2013
Means v. USCCB is the ACLU's lawsuit against the United States Conference of Catholic Bishops that received so much media attention last week. I did not see much explicitly about the legal merits of that suit in the first wave of reporting. The most I saw was in NPR's story, which quoted Rick Garnett's assessment of the "novel case" as a "stretch." The New York Times did note that the plaintiff had taken the "unusual step" of suing the Bishops' Conference (rather than the doctor or medical facility whose alleged negligent treatment is at issue); the story also included a bioethics source not aligned with the ACLU. But seemingly more typical were stories from NBC News and the Detroit Free Press, which uncritically recited the claims of the lawsuit, quoted the ACLU, noted that the USCCB refused to comment, and then quoted an ethics or medical expert who assumed the truth of the allegations in the complaint.
The USCCB later issued a statement. And with additional time, other commentary has emerged in which the legal merits of the claims have received additional scrutiny. The American Prospect's story by Amelia Thompson-Deveaux, for example, quotes Illinois law professor Robin Fretwell Wilson and places the lawsuit in some legal context:
From a legal perspective, suing the USCCB rather than the doctor or the hospital is akin to blaming a professional organization for medical malpractice, says Robin Fretwell Wilson, a professor of law at the University of Illinois. Much of the ACLU’s case hinges on the lack of information imparted to Means, which is generally considered to be the doctor’s responsibility. “I don’t doubt that if [Means] sued the hospital or the doctor, this would be plain-vanilla medical malpractice,” she says. “But they’re not suing the doctor, the hospital, the local bishops, the board of trustees—you’re many layers removed from the person who really should owe this woman a remedy if everything in the complaint is taken as accurate.”
This assessment seems correct. As Eduardo Peñalver mentioned in the update to his post at dotCommonweal, the article "does a nice job of laying out some of the problems with the ACLU's legal theory."
The existence of these problems raises another set of questions about why the ACLU brought the lawsuit as they did in the first place. If one assumes for purposes of analysis that medical malpractice was committed, then why not sue for medical malpractice? Why repackage a potentially winning claim of medical malpractice into a seeminly losing claim of theological malpractice? These are questions that have been bothering me from the beginning. And they seem to have been bothering others as well.
One answer may be that the ACLU's goal in the case is not to obtain personal redress for their client but instead to place a dark cloud over Catholic healthcare more generally. That is not only plausible but probable. But it can't be a full explanation, because naming the doctors and the hospital and any other potentially responsible parties does not preclude naming the USCCB. And motivational attributions of this sort can be dangerous.
The real reason (or more likely, the main reason among others) may be simpler. The best explanation for the peculiar theory of the case may be that they were out of time. The complaint alleges two counts of negligence. Although the complaint is not as explicit on this point as it could be, these are state-law claims under Michigan law. There may be federal-law defenses based on statutory preemption or the First Amendment. But the basic claims are state-law claims, and these are governed by state-law statutes of limitations. The relevant statutes of limitations are at MCL 600.5805. There is a two-year statute of limitations for malpractice actions, MCL 600.5805(6), and a catch-all three-year statute of limitations for damages actions for personal injury not otherwise provided for, MCL 600.5805(10).
According to the complaint, the injuries at issue in Means v. USCCB occurred from December 1 to December 3, 2010. From the little research that I have done, then, it appears that a medical malpractice claim would have been barred by the statute of limitations as of December 3, 2012, whereas a generic personal injury claim would have remained open for another year. And if that is right, the legal explanation for the ACLU's recourse to the novel legal theory of theological malpractice in Means v. USCCB is that they filed too late to recover for medical malpractice. Concern about the statute of limitations even for this generic personal injury claim premised on theological malpractice probably also explains the timing of filing. The complaint was docketed as filed on November 29, 2013, which means that they just made it in if the three-year statute of limitations applies.
I am not a Michigan lawyer and there may well be additional legal reasons for not bringing a medical malpractice claim. But if you ask the right questions, the basic statute-of-limitations research for a post like this takes just minutes, does not require too much specialized knowledge, and is free. Given the lack of reporting on this issue, the journalists in the first wave of stories may not have been asking the right questions (for the legal angle of the story at least).
Monday, November 11, 2013
I have finally finished reading through the 154 pages of the Seventh Circuit opinions in Korte v. Sebelius (mentioned by Rick a bit earlier today). To Rick's assessment of Judge Sykes's "excellent opinion" as "one of the most detailed and deep" analyses of the interaction between RFRA and the contraceptives mandate, I would add that Judge Rovner's dissent is one of the most thorough expositions of the government's side of the case (although Judge Rovner's mode of analysis does not map directly onto the government's). Reading the majority and dissenting opinions together provides a good overview of the state of the arguments on both sides.
Judge Rovner's dissent argues that allowing a corporation to assert a RFRA claim against the government mandate on the same terms as a human being is "irreconcilable with the very essence of religious faith and, for that matter, humankind." Although the dissent acknowledges that "[p]erhaps there are good reasons to extend the right of free exercise to religious organizations, including not-for-profit corporations organzied to pursue religious ends," Judge Rovner says that "it is not entirely clear to me why even this step is necessary given the associational standing of such entities to assert the free exercise rights of their members." While the dissent views corporate RFRA claims with deep skepticism, the majority judges "take it as both conceded and noncontroversial that the use of the corporate form and the associated legal attributes of that status--think separate legal personhood, limitations on owners' liability, special tax treatment--do not disable an organization from engaging the exercise of religion within the meaning of RFRA (or the Free Exercise Clause, for that matter)."
For reasons I have identified previously (as well as some additional arguments advanced by the panel majority in this decision), I think that the panel majority is on the mark in its assessment of this issue. I will not repeat my earlier arguments or those adopted by the panel majority. But here are a couple of additional observations about the differing interpretations of RFRA's reach:
(1) In forming one's own assessment of the merits of the competing analyses of RFRA's reach, it might be helpful to explicitly foreground the oeprative methodologies that lead to the different results. While textualism and purposivism are not always easy to distinguish, it's a fair assessment to describe Judge Sykes's reasoning as more textualist, and Judge Rovner's as more purposivist. Judge Sykes relies on the Dictionary Act and the Supreme Court's instruction that judges should not "stray too far from the statutory text" in applying the Dictionary Act's direction as to context. Judge Rovner, by contrast, focuses on the enactment of RFRA against a Free Exercise Clause backdrop in which the Supreme Court had not previously recognized "that secular corporations have free exercise rights." To compare to another area of the law, Judge Rovner's approach to RFRA seems more like the interpretive approach that the Supreme Court has adopted toward the Eleventh Amendment in its sovereign immunity jurisprudence while Judge Sykes's approach to RFRA is more like that advocated by John Manning with respect to the Eleventh Amendment. (Perhaps it is also revealing that Judge Sykes twice cites Nick Rosenkranz's Federal Rules of Statutory Interpretation.)
(2) Judge Sykes's discussion of the problems with the government's attempt to argue for implication of a religious/nonprofit limitation from Title VII and the ADA into RFRA is the best I have yet seen at relating these statutes to the differing strands of constitutional protection for religious liberty. Here are a couple of key paragraphs:
The religious-employer exemptions in Title VII and the ADA are legislative applications of the church-autonomy doctrine. By their terms the exemptions are limited to religiously affiliated employers, a limitation that makes sense in light of the rationale for the rule. The exemption is categorical, not contingent; there is no balancing of competing interests, public or private. In other words, where it applies, the church-autonomy principle operates as a complete immunity, or very nearly so. Such a strong hands-off principle isn't justified for organizational associations that are not religiously affiliated.
In contrast, the judicial remedy in RFRA is both broader and more flexible. It covers religious organizations as such, but it does not stop there. The remedy is available to any sincere religious objector--individuals and organizations alike--and its organizational applications are not limited to religiously affiliated organizations. The exemption is comprehensive in that it applies across the United States Code and Code of Federal Regulations and restrains the conduct of all federal officials. But it can be overriden by a sufficiently strong governmental interest.
