Dane, Laycock, Friedlander, and Kulturkampf

A recent post at Mirror of Justice brought me to Perry Dane’s insightful seven-page essay, Doctrine and Deep Structure in the Contraception Mandate Debate, which is well worth reading. So too is Douglas Laycock’s recently posted article, Religious Liberty and the Culture Wars. 

Dane’s and Laycock’s reflections align in a way with aspects of Joel Friedlander’s incisive 1992 Comment, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Penn. L. Rev. 1049 (1992). In this Comment (written as a student but of a quality that far surpasses most faculty-produced scholarship), Friedlander seeks to explain Justice Brennan’s jurisprudence as it developed over the course of his judicial career. His thesis is that “a kulturkampf, warring cultures and warring theories of culture, best explains the shift in Justice Brennan’s decisions and his place in the continuing war over the meaning of the Constitution.”

Friedlander analyzes Brennan’s jurisprudence through analytical frameworks supplied by social theorists Otto Gierke, Ernst Troeltsch, and Philip Rieff. His description of Rieff’s thought suggests the ongoing relevance of Rieffian analysis, and Friedlander’s Rieffian analysis of Justice Brennan’s obscenity decisions points toward a different kind of “culturally conservative” jurisprudence:

Rieff, a contemporary of Justice Brennan, is a sociologist of culture and cultural change. In Rieffian theory, modernity denies and negates the sacred order that all cultures, Catholic and otherwise, address. Included in his theory of cultural warfare, or kulkturkampf, are theories of legal personality and the relative authority of religious and racial motifs. * * *

To Rieff, the first sociological fact worth knowing about cultures is that their continued life depends upon them disarming their competitors. Only as a last resort is military force utilized; the first weapon is words. Of concern in this Comment is the ultimate weapon of the law, which implies both command and compulsion. * * *

* * *

The dimensions of this cultural warfare are not contained by, and may dwarf, the longstanding jurisprudential debates between originalism and non-originalism or between natural law and positivism. At stake in this culture struggle is the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion. Though there are those who fear the implementation of a “new right” jurisprudence, the cultural conservatives on the opposing side are largely constrained by their positivism, if not by their originalism. To avoid these artificial constraints, this Comment concludes, a culturally conservative jurisprudence should look to Justice Brennan’s theories and their expressing in the reasoning of Roth.

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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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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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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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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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Gerson on Obama v. Catholic institutions

Michael Gerson has some strong words in today’s Washington Post about the Obama administration’s stance vis-a-vis Catholic institutions. Here’s a taste:

HHS has drawn conscience protections so narrowly that Catholic colleges, universities and hospitals — any Catholic institution that employs and serves non-Catholics — will be required to offer health coverage that includes contraception and drugs that cause abortion. In global health grants, new language is appearing that requires the integration of family planning and “reproductive health” services, effectively barring the participation of Catholic institutions. Archbishop Timothy Dolan, president of the USCCB, calls these policies an “assault which now appears to grow at an ever-accelerating pace in ways that most of us could never have imagined.”

The main victims of this assault are not bishops but the poor and vulnerable. USCCB-sponsored human trafficking programs, for example, provide employment assistance, legal services, child care and medical screening. But because case managers won’t refer for abortions, HHS would rather see these programs shut down in favor of less effective alternatives. This form of anti-religious extremism counts casualties.

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