Must the Little Sisters of the Poor implement the HHS Mandate?

Today is the deadline to file comments on the HHS Mandate Notice of Proposed Rulemaking. Among the many groups commenting today are the Little Sisters of the Poor. Their comments filed today are available here, and their prior statements on the HHS Mandate are available here and here.

As this 2005 Wall Street Journal article explains, the Little Sisters of the Poor have “an odd business plan” for their homes for the elderly poor: “Beg for help, lavish it on residents.” But more confounding than the Little Sisters’ business plan is the idea that the federal government would force them to arrange their health coverage for their homes’ employees to ensure coverage of female sterilization and the free flow of all FDA-approved contraceptives, including abortifacient drugs and devices.

President Obama is a college sports fan, but he should know better than to think that the Little Sisters of the Poor are simply “a euphemism in college sports to describe a weak opponent.” The Little Sisters are real; the HHS Mandate burdens their religious exercise; and the Obama Administration has the power to lift that burden. Lifting that burden is also the President’s duty under federal law.

Some excerpts from the comments:

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A thought on life tenure and Pope Benedict XVI’s resignation

Like everyone else, I was surprised by the announcement of Pope Benedict XVI’s resignation. But apparently unlike many, this announcement did not strike me as extraordinary. Rather, I was surprised to learn how unusual papal resignation has been throughout history.

It is more difficult for me to understand why fewer have resigned than it is to understand why Pope Benedict XVI would do so. The Pope has life tenure in office. But the purpose of life tenure–to guarantee independence–is compatible with voluntary resignation of office. The Petrine office is demanding in many ways. When its current holder freely arrives at the conclusion that he can no longer carry out all the demands of office, it is entirely appropriate for him to resign.

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If RFRA protects for-profit corporations, what’s to stop Jehovah’s Witnesses’ companies from refusing coverage for blood transfusions?

An argument against recognizing RFRA coverage of for-profit corporations that seems to be popping up with some regularity goes like this: Once courts recognize the right of evangelical employers to buy insurance coverage that excludes abortion-causing drugs and devices, or the right of Catholic employers to buy insurance coverage that excludes contraceptives, there is nothing to stop Jehovah’s Witness employers from buying insurance coverage that excludes coverage for blood transfusions. See, e.g., Matthew Boudway at dotCommonweal (“Should an overzealous Jehovah’s Witness be able to get a group plan that excludes coverage for emergency blood transfusions, even if none of his employees are coreligionists?”); Americans United for Separation of Church and State (“The logic of Plaintiffs’ argument would transcend the provision of coverage for contraception. A Jehovah’s Witness could choose to exclude blood transfusions from his company’s health-insurance coverage.”).

This argument obviously appeals to some, or they would not bother making it. But there are several reasons that the argument is weak. And the fact that some advance this argument seriously in reasoned public debate may work against improving mutual understanding of religious liberty. Consider:

(1) Has any Jehovah’s Witness employer ever made such a claim? I’m not aware of any. Yet all of the legal tools available to make such a claim have been available for years. It is hard to see how the roll down the slippery slope to this location would get started by rulings about the contraceptives mandate if it has not yet started in some other way.

(2) RFRA prohibits the government from substantially burdening the exercise of religion. The religiously objecting employer under RFRA seeks protection from a government mandate. I’m not aware of any blood transfusion coverage mandate by the government–probably because there is no problem out there of employers limiting coverage in this particular way. If Jehovah’s Witness employers have not sought to limit coverage even when there is no mandate preventing them from doing so, figuring out the scope of their religious freedom in this regard seems like an idle exercise.

(3) The people putting this argument forward may not even understand what Jehovah’s Witnesses actually believe. While the religion teaches its adherents to avoid blood transfusions, it is not at all clear (at least to me, anyway) that the religion teaches this as a matter of the moral law binding on all, rather than a form of divine positive law that is not binding on those outside the community of religious adherents. (For an articulation of this distinction, see this discussion by Mark Shea.)

(4) RFRA is not a free pass for a religious exemption, but its application does trigger the requirement for the government to satisfy strict scrutiny, and the government can sometimes satisfy that test. The application of strict scrutiny should stop the roll down the slippery slope from reaching the point where the government cannot use certain regulatory tools to achieve a compelling government interest. Even assuming that a substantial burden analysis comes out the same, the compelling interest is easier to identify in with respect to emergency blood transfusions. The need for an emergency blood transfusion is unpredictable. And in comparison with emergency contraception, which is available over the counter at most pharmacies (for around $40 for a generic or $50 for a brand name), emergency blood transfusions are much more expensive.

(5) The casual deployment of this Jehovah’s Witness example is sometimes coupled with related arguments that reveal a misunderstanding of the religious beliefs of other groups. For example, the same amicus curiae brief in which Americans United for Separation of Church and State advanced the Jehovah’s Witness argument also argued that “Catholic owners could deprive their companies’ employees of coverage for end-of-life hospice care and for medically necessary hysterectomies.” With statements like this, it is difficult to believe that this brief was reviewed before filing by someone familiar with Catholic moral teaching. Catholics object neither to end-of-life hospice care nor to medically necessary hysterectomies.

(6) A casual approach to religiously based moral beliefs that differ in some ways from majority-held moral beliefs can easily lead to harm through a failure to appreciate and offer reasonable accommodations. While my research into this issue did not uncover an example of a Jehovah’s Witness employer denying insurance coverage for a blood transfusion, it did reveal a case in which a state denied to a Jehovah’s Witness on public aid coverage for a bloodless liver transplant that was available out-of-state at lower cost than an in-state transplant requiring a transfusion. Mary Stinemetz eventually prevailed on her Free Exercise challenge to this denial, but by the time the case was over, her condition had apparently deteriorated too far for her to any longer be eligible for a transplant.

(7) Most of the people who are advancing this particular slippery-slope argument probably have no idea of the contributions that Jehovah’s Witnesses have made to the law of religious liberty in the United States. See, e.g.,Thomas v. Review Bd.; West Virginia Bd. of Educ. v. Barnette.

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Roe at 40, Casey at 20

January 22 remains a day worth remembering. On this day in 1973, the Supreme Court promulgated its profoundly wrong decision in Roe v. Wade. At Mirror of Justice, Rick Garnett has some sober but hopeful reflections on Roe at 40.

Another date worth recalling is June 29. On that day in 1992, the Supreme Court issued Planned Parenthood of Southeastern Pennsylvania v. Casey. I share the view–most forcefully expressed by Michael Stokes Paulsen–that Casey is the worst constitutional decision of all time. (For Paulsen’s explanation, see Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2002); summarized more recently in two columns at Public Discourse, available here and here.)

One axiom of some academic theories of constitutional law in recent decades has been that, for a theory to be right, it cannot yield the result that Brown v. Board of Education is wrong. I hope for the broad acceptance of a different axiom: Any theory of constitutional law is wrong if it yields the result that Casey is right.

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About Justice Scalia’s headgear

The twitterverse is alive with tweets about Justice Scalia’s headgear for today’s inauguration. At the risk of putting all the fun speculation to an end . . . The hat is a custom-made replica of the hat depicted in Holbein’s famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society of Richmond, Virginia. We presented it to him in November 2010 as a memento of his participation in our 27th annual Red Mass and dinner.

[UPDATE: Many have asked for more details about Justice Scalia's hat. It was made in Richmond, Virginia by milliner Camille Parham. Richmond lawyer and St. Thomas More Society executive committee member Stephen Reardon spearheaded our search for a "St. Thomas More hat" and presented the hat to Justice Scalia at the dinner after our Red Mass. A picture from the presentation and one from Justice Scalia's visit earlier in the day to the University of Richmond School of Law are below.]

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Benedict XVI on flexibility, vocation, and following one’s inclinations

God and the World is the second book that arose out of conversations between Joseph Cardinal Ratzinger and Peter Seewald. (The first was Salt of the Earth.) Here are a couple of excerpts from their conversations, on the general topic of flexibility, vocation, and following one’s inclinations:

[Seewald] People nowadays, in contrast to these disciples following Christ, have the idea that they can work out their path, put their lives together, by their own unaided efforts. They think that in any case no one has any clear identity any longer. Life is a flowing stream of illusions, according to what task or what scenario confronts us–or what desire. An either-or decision is in any case passé in the modern world; instead of that there is the new possibility of neither-nor.

[Ratzinger] Flexibility has become the all-sufficient watchword. we want to be able to react to new demands, and we hope, by changing jobs fast, to be able to climb the ladder as quickly and as high as possible. But I think there are still callings that demand the whole of a person. Being a doctor, for instance, or a teacher, is not something I can do just for two or three years, but is a calling that requires my whole lifetime. That is to say, even today there are tasks that are not a job that runs alongside my life, so to speak, in order to ensure I have money to live on. For a true calling, income is not the criterion, but the practicing of some skill in the service of mankind.

* * *

[Seewald] To stay with paths in life: many people have the notion that their life is a kind of film. And in this biographical filmstrip they suppose they should be able to make all the cuts and supervise the production of each scene themselves. One cannot avoid the thought: Why should I go out of my way in life, make special efforts, seek anything out, show self-control or faithfulness? That is, set out on this difficult path that the disciples follow with Jesus. Why should my life not just be simple and easy?

[Ratzinger] That is something only those people can afford who are born to luxury. That is a fantasy of people with property, which takes no account of the fact that, for the great majority of mankind, life is a struggle. On those grounds I would see this idea of choosing one’s own path in life as a selfish attitude and a waste of one’s vocation.

Anyone who thinks he already has it all, so that he can take what he wants and center everything on himself, is depriving himself of giving what he otherwise could. Man is not there to make himself, but to respond to demands made upon him. We all stand in a great arena of history and are dependent on each other. A man ought not, therefore, just to figure out what he would like, but to ask what he can do and how he can help. Then he will see that fulfillment does not lie in comfort, ease, and following one’s inclinations, but precisely in allowing demands to be made upon you, in taking the harder path. Everything else turns out somehow boring, anyway. Only the man who “risks the fire,” who recognizes a calling within himself, a vocation, an ideal he must satisfy, who takes on real responsibility, will find fulfillment. As we have said, it is not in taking, not on the path of comfort, that we become rich, but only in giving.

Source: Joseph Cardinal Ratzinger and Peter Seewald, God and the World, trans. Henry Taylor, Ignatius Press 2002.

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NBC interview of Sotomayor in Catholic Church?

This NBC interview of Justice Sonia Sotomayor by Savannah Guthrie looks to have been conducted in a Catholic Church. Is that so? What accounts for that setting?

Justice Sotomayor does invoke God at one point:

Q: Do you think it’s good for the democratic process for the Court to be deciding these big, social issues of the day?

A: I don’t think of us, the democratic process, as being a static one where the Court announces, and that ends the dialogue. The Court announces, and the dialogue begins, and the approach in some instances has to be changed. But the society manages to do it.

Q: Do you look forward to those big, consequential cases?

A: Oh my God, look forward to them. I don’t think you can say anyone looks forward to controversy. I think that the day a Justice forgets that each decision comes at a cost to someone, then I think that you start losing your humanity.

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Baltimore mayor on the sacredness of true marriage

A couple paragraphs from an AP news story about same-sex civil marriages in Maryland show an inversion of the traditional understanding of church and state, whereby the church superintends the sacred and the state superintends the secular. Titled “Weddings abound as gay marriage becomes legal in Maryland,” the story describes wedding ceremonies between same-sex couples after explaining that Governor O’Malley pushed for legal recognition of same-sex civil marriage “against leaders of his Catholic faith” and the mayor of Baltimore opined on the relative sacredness of the resulting legal relationship:

The ceremonies follow a legislative fight that pitted Gov. Martin O’Malley against leaders of his Catholic faith. Voters in the state, founded by Catholics in the 17th century, sealed the change by approving a November ballot question.

“There is no human institution more sacred than that of the one that you are about to form,” Rawlings-Blake said during the brief ceremony. “True marriage, true marriage, is the dearest of all earthly relationships.”

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Merry Minervan Christmas from Thomas Jefferson

In an April 1823 letter to John Adams, Thomas Jefferson discoursed on the meaning of the beginning of the Gospel of John (“In the beginning was the Word, and the Word was with God, and the Word was God.”). Jefferson’s theological ruminations may bear particular resonance for Trinitarian Christians this Christmas Eve day 2012:

[T]his text, so plainly declaring the doctrine of Jesus that the world was created by the supreme, intelligent being, has been perverted by modern Christians to build up a second person of their tritheism by a mistranslation of the word {logos}. One of it’s legitimate meanings indeed is `a word.’ But, in that sense, it makes an unmeaning jargon: while the other meaning `reason’, equally legitimate, explains rationally the eternal preexistence of God, and his creation of the world. Knowing how incomprehensible it was that `a word,’ the mere action or articulation of the voice and organs of speech could create a world, they undertake to make of this articulation a second preexisting being, and ascribe to him, and not to God, the creation of the universe. The Atheist here plumes himself on the uselessness of such a God, and the simpler hypothesis of a self-existent universe. The truth is that the greatest enemies to the doctrines of Jesus are those calling themselves the expositors of them, who have perverted them for the structure of a system of fancy absolutely incomprehensible, and without any foundation in his genuine words. And the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerva in the brain of Jupiter. But we may hope that the dawn of reason and freedom of thought in these United States will do away with all this artificial scaffolding, and restore to us the primitive and genuine doctrines of this the most venerated reformer of human errors.

In his rejection of Jesus’s divinity, the Jefferson of 1823 was consistent with the Jefferson of the American presidency. See, for example, his 1803 “Syllabus of an Estimate of the Merit of the Doctrines of Jesus, Compared with Those of Others,” wherein he notes, among other things, that Jesus “taught, emphatically, the doctrines of a future state.”

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Gerson on Biden, empathy, and humanity

Michael Gerson’s column on Vice President Biden this evening is a gem. It opens:

What to make of Vice President Biden? Sometimes he is gaffe-prone comic relief. Sometimes he is the possessor of the worst geopolitical judgment in Washington — as when he opposed the Osama bin Laden raid or advocated the partition of Iraq. And sometimes he seems to be the last genuine human being in American politics.

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We got our Irish up

Cardinal Dolan, describing the Bishops’ reaction to some of the events surrounding the contraceptives mandate:

We got our Irish up when leaders in government seemed to be assigning an authoritative voice to Catholic groups that are not the bishops. If you want an authoritative voice, go to the bishops.

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The limited scope of the Catholic Bishops’ amicus curiae briefs

By using the amicus curiae briefs of the United States Conference of Catholic Bishops to define the universe of Supreme Court cases in which the Catholic hierarchy has an interest, it is possible to reveal the areas of consonance and dissonance between a leading set of views about the preferred state of the law from the point of view of Catholic social teaching (namely the Bishops’ Conference’s views) and the actual state of the law as brought about by the Supreme Court. It is also possible, as the charts in prior posts illustrate (here and here), to assess the extent to which particular Justices have voted for parties supported by the Bishops’ Conference as amicus curiae.  But the Bishops’ Conference’s briefs should not be understood as presenting the Catholic position on the legal questions that they address. There is no single, correct “Catholic answer” to questions of constitutional law (or any questions of federal law, for that matter). There is, for example, a Catholic teaching about the morality of the death penalty. But there is no Catholic teaching about the meaning of the Eighth Amendment. There is, to pick another example, a Catholic teaching about the necessity for the Church to have the freedom to administer sacraments and to gather the People of God. But there is no Catholic teaching about the meaning of the Free Exercise Clause of the First Amendment. And so on. When bringing Catholic teaching to bear on questions of federal law, the Bishops’ Conference makes prudential, strategic, tactical, and legal judgments in deciding whether to file a brief and what to include in it.

Even while affirming that there is no single, correct “Catholic answer” to questions of federal law, it is important not to overemphasize this point. Catholic social teaching guides the Bishops’ Conference’s amicus briefs, and all of these briefs ask the Court to implement the insights of that teaching in some way. Moreover, it is difficult to imagine the Bishops’ Conference weighing in on the opposite side of the cases in which they file amicus curiae briefs. Take, for instance, Gonzales v. Oregon, which involved an interpretive rule issued by the Attorney General that prohibited the prescription of death-dealing drugs under federal law in certain circumstances even when state law explicitly permitted such prescriptions. As a potential amicus curiae, the Bishops’ Conference’s principal is whether to file or not; there is little doubt which side the Conference would support if it were to file.

Unlike potential amici, Catholic Justices do not have the option of sitting on the sidelines. In cases properly before them, their obligation is to render judgment. Moreover, in the course of adjudicating cases, the Justices develop broader jurisprudential commitments that influence how they approach cases–commitments that the Bishops’ Conference need not develop or adopt in a similar manner.

Gonzales v. Oregon, for example, presented both federalism and separation of powers issues about which Catholic social teaching has little to say in comparison with the ample resources for moral evaluation offered by the tradition. The Bishops’ Conference’s support of a national, one-size-fits-all approach to the particular medical and legal issues in Gonzales v. Oregon depended not only on Catholic teaching about what constitutes a “legitimate medical purpose,” but also prudential judgments about the distribution of power between the state and federal government. Those prudential judgments take on a different complexion when the relevant federal actor claiming authority to make legal judgments about medical practices, whether that be the Attorney General or the Secretary of HHS, is more hostile than sympathetic to the Bishops’ Conference’s considered moral judgments. For the Justices, by contrast, judgments about the distribution of regulatory power between the federal and state governments, and about the distribution of interpretive power between the executive and the judiciary, must be more legal than prudential. And they should, to the greatest extent possible, be consistent with the legal judgments those Justices would reach with respect to issues that have little, if nothing, to do with Catholic social teaching.

[Cross-posted at CLR Forum.]

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The Catholic Bishops in the Roberts Court: Track Record as Amicus Curiae

In the first six years of the Roberts Court (OT05-OT10), the United States Conference of Catholic Bishops filed seven amicus curiae briefs. Four dealt with religious liberty  (Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, CLS v. Martinez, Arizona School Tuition Organization v. Winn, and Hosanna-Tabor v. EEOC), two addressed abortion (Ayotte v. Planned Parenthood and Gonzales v. Carhart), and one dealt with assisted suicide (Gonzales v. Oregon). The table below compares the Justices by whether they voted for the same party supported by the Bishops’ Conference as amicus curiae.

Justice Name	Agreement with Bishops’ Conference as Percentage of Cases	Agreement with Bishops’ Conference as Fraction of Cases
Chief Justice Roberts (Catholic)	100%	7/7
Justice Scalia (Catholic)	100%	7/7
Justice Thomas (Catholic)	100%	7/7
Justice Alito (Catholic)	100%	4/4
Justice Kennedy (Catholic)	71%	5/7
Justice Stevens	50%	2/4
Justice Souter	50%	2/4
Justice O’Connor	50%	1/2
Justice Ginsburg	43%	3/7
Justice Breyer	43%	3/7
Justice Sotomayor (Catholic)	33%	1/3
Justice Kagan	33%	1/3

These statistics reveal a stark division between the Catholic and the non-Catholic Justices, a division that is likely to shape up more and more as one between the Republican appointees (all Catholic) and the Democratic appointees (one of whom is Catholic). The three cases in which the party supported by the Bishops’ Conference garnered the votes of the non-Catholic Justices were all unanimous decisions (Hosanna-Tabor v. EEOC, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, and Ayotte v. Planned Parenthood). The party supported by the Bishops’ Conference did not attract the votes of a single non-Catholic Justice in any split decision.

As noted in connection with the earlier chart showing the same measure in the Rehnquist Court, the point of this measurement is not to demonstrate influence, but rather to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

[Cross-posted at CLR Forum.]

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The Catholic Bishops in the Rehnquist Court: Track Record as Amicus Curiae

By my count, the United States Conference of Catholic Bishops filed amicus curiae briefs in 22 cases during the Rehnquist Court. (For a spreadsheet showing USCCB amicus briefs and Justices’ votes for OT86-OT10, see here. Please let me know if the spreadsheet contains any errors.) Ten of the briefs dealt with religious liberty (encompassing statutory, Free Exercise, and Establishment Clause cases); six addressed abortion; three were about end-of-life issues; two involved the death penalty; and one addressed associational freedom. The chart below provides for crude comparisons among the Justices, placing them in an array of more or less agreement in their votes for the party (petitioner or respondent) supported by the USCCB’s amicus curiae briefs. Direct comparisons cannot be made among all the Justices due to the changing composition of the Court over this time period.

Justice Name	Agreement with Bishops’ Conference as Percentage of Cases	Agreement with Bishops’ Conference as Fraction of Cases
Justice White	100%	10/10
Justice Scalia (Catholic)	86%	19/22
Justice Kennedy (Catholic)	86%	18/21
Chief Justice Rehnquist	82%	18/22
Justice Thomas (Catholic)	79%	11/14
Justice O’Connor	77%	17/22
Justice Breyer	58%	7/12
Justice Souter	53%	8/15
Justice Brennan (Catholic)	43%	3/7
Justice Ginsburg	42%	5/12
Justice Stevens	36%	8/22
Justice Blackmun	20%	2/10
Justice Marshall	13%	1/8

The point of counting votes in this particular way is not to assess the influence of the Bishops’ Conference. It is highly doubtful that the Conference’s presence or absence as amicus curiae has had any effect on how the Justices voted. The point, instead, is to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

[Cross-posted at CLR Forum]

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Justice Brennan and Justice White from the Catholic Bishops’ point of view

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).

[Cross-posted at CLR Forum]

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From Roper to Rosie to . . .

For the next few weeks, I’ll be be guest-blogging over at CLR Forum, the blog associated with the Center for Law and Religion at St. John’s University School of Law. Some of the posts will discuss various aspects of a paper I’ve been working on that I recently presented at a law and religion conference at Pepperdine. I’ve reproduced my first CLR post below, and will continue to cross-post during my guest stint there.

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Times-Dispatch op-ed on RFRA and the contraceptives mandate

Today’s Richmond Times-Dispatch contains an op-ed that I authored about the availability of a claim under the Religious Freedom Restoration Act for religious organizations that object to the contraceptives mandate. The policy changes announced Friday are certainly a step in the right direction. But the RFRA litigation will continue.

The ending of the op-ed–written earlier in the week and quickly revised immediately after the President’s announcement on Friday afternoon–is more tentative than I now believe is warranted. I wrote: “Should legal action continue to be necessary — and it very well could as more details of the administration’s changed plan take shape — the federal courts remain open for the enforcement of Congress’ broad understanding of religious liberty against an unreliable executive branch.”

If Friday’s announcement is the Administration’s “final offer,” continued litigation will be necessary. The reason why is captured well in the following statement by a group of distinguished legal scholars:

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.

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Rope-a-dope rulemaking to put off religious liberty litigation loss?

Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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Greenhouse’s telling omissions re: RFRA, contraceptives, and conscience

Linda Greenhouse’s Opinionator column today addresses “the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees.” The most interesting aspect of the column is what is missing from its legal analysis: any consideration of all the other ways that the Administration could ensure widespread access to low-cost contraception without violating the religious liberty of religious objectors. Perhaps one shouldn’t be surprised that the “tags” for the column are “birth control” and “Roman Catholic Church,” rather than “religious liberty” or “conscience.”

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law.

After misframing the issue as whether conscience trumps law, Greenhouse devotes two paragraphs to explaining why “that is not a principle that our legal system embraces.” These two paragraphs discuss the Supreme Court’s discussion in Employment Division v. Smith, a 1990 decision authored by Justice Scalia. Only after discussing Smith does Greenhouse turn to the Religious Freedom Restoration Act (“RFRA”). In the journalism business, this is known as burying the lede. The RFRA is where the principal legal action will be in the lawsuits challenging the contraceptives mandate.

Having submerged the real legal basis for the objectors’ claims, Greenhouse then leaves out the part of the RFRA‘s test that will be hardest for the Administration to satisfy. The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

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Another powerful Gerson commentary on the illiberalism of the contraceptive mandate

Michael Gerson has another powerful commentary on the illiberalism of the Obama Administration’s “final decision that Catholic universities, hospitals and charities will be compelled to pay for health insurance that covers sterilization, contraceptives and abortifacients.” Gerson writes:

 Obama is claiming the executive authority to determine which missions of believers are religious and which are not — and then to aggressively regulate institutions the government declares to be secular. It is a view of religious liberty so narrow and privatized that it barely covers the space between a believer’s ears.

Obama’s decision also reflects a certain view of liberalism. Classical liberalism was concerned with the freedom to hold and practice beliefs at odds with a public consensus. Modern liberalism uses the power of the state to impose liberal values on institutions it regards as backward. It is the difference between pluralism and anti-­clericalism.

(HT: Mirror of Justice)

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Don Bosco, Friend of the Young and the Poor

Today is the Feast of St. John Bosco (Don Bosco). He was a remarkable man. In honor of his feast, here is an instrumental rendition of Friend of the Young and the Poor, a song by Fr. Stephen Schenck, SDB.

You were the light in the dark for the young who could not see

And you were a spark for the young to become all they could be

Help us all come to be all that God calls us to be

We will send the message

We will be the witnesses that you, Don Bosco, are the friend of the young and the poor

Lead us safely through the storm to the heavenly shore

 

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Cardinal George’s apology

An interesting story out of Chicago about Church, family, public statements, and regret:

“When I was talking, I was speaking out of fear that I have for the church’s liberty and I was reaching for an analogy which was very inappropriate, for which I’m sorry,” George said. “I didn’t realize the impact of what I was saying. … Sometimes fear is a bad motivation.”

In his comments, broadcast on Fox Chicago television on Christmas, George addressed what he perceives to be religious discrimination in the name of gay rights. While discussing the pride parade, he cited the anti-Catholicism of the KKK in the early 1940s.

“You know, you don’t want the gay liberation movement to morph into something like the Ku Klux Klan, demonstrating in the streets against Catholicism.” George told the Fox Chicago reporters. “So I think if that’s what’s happening, and I don’t know that it is, but I would respect the local pastor’s, you know, position on that.”

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Name that Justice (19th Century edition)

Name this nineteenth-century Justice:

[His] religion was the moving principle of his life. It filled him with every Christian grace. Faith, hope, and charity led him in the high career which we have been reviewing. The humblest received his kindness, while the great were charmed with courtesy. The servants of his family could hardly understand his kindness, when they contrasted it with the treatment of their servants by others. In early life he manumitted all the slaves he inherited from his father. The old ones he supported by monthly allowances of money till they died. The allowances were always in small silver pieces—none exceeding fifty cents—as more convenient, and not so liable as to be taken improperly by those with whom they might deal.

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Maritain on the meaning of “the people” and the relationship between the people and the State

In Man and the State (1951), Maritain discusses the relationship between the people and the State:

As concerns furthermore the very notion of the people, I would say that the modern concept of the people  has a long history and stems from a singular diversity of meanings which have fused together. But considering only the political significance of the word, suffice it to say that the people are the multitude of human persons who, united under just laws, by mutual friendship, and for the common good of their human existence, constitute a political society or body politic. The notion of body politic means the whole unit composed of the people. The notion of the people means the members organically united who compose the body politic. Thus what I have said concerning either Body Politic and Nation or Body Politic and State holds good for either People and Nation or People and State. Nay more, since the people are human persons who not only form a body politic, but who have each one a spiritual soul and a supratemporal destiny, the concept of the people is the highest and noblest concept among the basic concepts that we are analyzing. The people are the very substance, the living and free substance, of the body politic. The people are above the State, the people are not for the State, the State is for the people.

I should finally like to point out that the people have a special need of the State, precisely because the State is a particular agency specializing in the care of the whole, and thus has normally to defend and protect the people, their rights, and the improvement of their lives against the selfishness and particularism of privileged groups or classes. In ancient France the people and the King relied upon each other, somewhat ambiguously, in their struggle against the supremacy of the great feudal lords or the nobility. In modern times it has been the same with the people and the State in regard to the struggle for social justice. Yet, as we have seen, this normal process, if it becomes corrupted by the absolutism of the totalitarian State, which raises itself to the supreme rule of good and evil, leads to the misfortune and enslavement of the people; and it is impaired and jeopardized if the people surrender themselves to a State, which, as good as it may be, has not been freed from the notion of its so-called sovereignty, as well as from the factual deficiencies of the body politic itself. In order both to maintain and make fruitful the movement for social improvement supported by the State, and to bring the State back to its true nature, it is necessary that many functions now exercised by the State should be distributed among the various autonomous organs of a pluralistically structured body politic–either after a period of State capitalism or of State socialism, or, as is to be hoped, in the very process of the present evolution. It is also necessary that the people have the will, and the means to assert their own control over the State.

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Maritain on materialistic imperialism, the magnification of the state, the limits of rationalism, and the need for faith to make of joy in existence an intelligent delight

In Integral Humanism (1936, first U.S. edition in translation 1968), Jacques Maritain writes as follows in his first chapter on the Historical Ideal of New Christendom:

The world will not soon be done with the ultimate phase of materialistic imperialism, which invokes the dictatorship of the proletariat or reacts against it, and there will be necessary perhaps upheavals of world dimensions, if it is true that it is a question of liquidating a whole age of civilization.

Howsoever this may be, by a remarkable dialectical process, the Christian absolutism (at least Christian in appearance) which succeeded the mediaeval world has been ejected by an anti-Christian liberalism, and the latter having been evacuated in its turn by the sole fact of its success, the place is ready for a new absolutism, this time materialistic (with an avowed materialism or with a disguised materialism) and more enemy than ever of Christianity.

All along the course of this evolution, even and especially during the liberal and individualist democratic period, something has constantly increased and magnified its claims: the State, the sovereign machine in which political power takes flesh, and which imprints its anonymous countenance on the social community and on the obeying multitude.

While awaiting the results of the full ascension of promises, and without taking account of its own responsibilities, rationalism laments that the youth of the entire world manifests for the moment a lively appetite for collective forms and spiritual standardization, in despair of the unity which is lost. It sees with astonishment a romantic distress which could find no reason for living succeeded by a joy in command and the fascinations of a bravado which satisfy themselves with the most superficial reasons for living. It realizes too late that only a faith superior to reason, vivifying the intellectual and effective activities, can assure among men a unity founded not on constraint, but on interior assent, and make of joy in existence, which is certainly natural, but which nature itself alone cannot safeguard (pagan wisdom held that the best fortune were never to have been born), an intelligent delight.

I would be grateful for any pointers about whom Maritain had in mind as having held that “the best fortune were never to have been born.”

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