Grover on Religious Exemptions to the Patient Protection and Affordable Care Act

Samuel T. Grover (a student at Boston University School of Law) has posted Religious Conscience Exemptions to the PPACA Health Insurance Mandate. The abstract follows.—YAH

Within the Patient Protection and Affordable Care Act (“PPACA” of the “Act”), the individual health insurance mandate (“individual mandate”) – the provision which dictates that in 2014 and beyond all citizens must either have a form of health insurance or pay a tax penalty – has already been subjected to a number of constitutional challenges. The 3rd, 4th, 6th, and 11th Circuits have all heard challenges brought on similar grounds, with largely inconsistent results. While the focus of much of this litigation has centered around whether the individual mandate is a constitutional extension of Congress’s taxing power, this paper sets aside the Commerce Clause question that has demanded so much attention from the courts and asks instead whether the two religious exemptions written into the PPACA have struck an appropriate balance between the Constitution’s Religion Clauses. The paper argues that as currently drafted, the “religious conscience exemption” to the PPACA’s individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges on Free Exercise and Establishment Clause grounds.

This paper begins by analyzing the history behind the first of two religious exemptions written into the individual mandate, the religious conscience exemption, which allows certain religious individuals to avoid the individual mandate’s tax penalty without acquiring health insurance. The language of the exemption was taken directly from an existing religious conscience exemption to Social Security, designed to apply narrowly to the Old Order Amish. Because the purposes and goals of the PPACA differ from those of Social Security, this paper argues that it was unwise to write this same religious exemption into the PPACA.  Read more

Ashe on American Law, Religion, and Women

Marie Ashe (Suffolk University Law School) has posted Privacy and Prurience: An Essay on American Law, Religion, and Women. The abstract follows.—YAH

In my studying of American law – in its relation to religion and to privacy and to women – the current bookends of my readings consist of two sets of texts: the first, certain writings from the 17th-century Massachusetts Bay Colony; the second, certain writings from the United States Supreme Court of very recent years. The first set consists of reports and records generated in Massachusetts incident to the Antinomian Controversy of 1836-1838, particularly reports of the trials of Anne Hutchinson and Mary Dyer, and accounts of the “monstrous births” of each. The second set includes writings from year 2007: the United States Supreme Court’s opinion in Gonzales v. Carhart (its most recent abortion decision), and the amicus briefs filed therein.

Examining and juxtaposing those sets of writings, this essay discloses striking resonances between the 17th-century and the 21st-century texts. It documents in each: religio-judicial prurience in examinations and constructions of female bodies; and disappearance of “privacy” as a protector of women’s autonomy and women’s liberty.

Transcript of Oral Argument in H-T, and Some Questions/Reactions

For those who may be interested, here is the transcript of the oral argument in H-T.  After the jump, some thoughts and/or questions.

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McConnell on the Ministerial Exception

Mike McConnell has a great piece in today’s Wall Street Journal on the ministerial exception, the subject of today’s argument in Hosanna-Tabor. Among other things, McConnell notes that, shockingly, the Obama Administration has filed an amicus brief opposing the exception in principle. I say “shockingly” because, at one point, anyway, the Obama Administration was trying assiduously to close the so-called “God gap” in American politics by reaching out to religious-values voters. But religious-values voters, including religious-values voters inclined to vote Democratic, believe, correctly, that the ministerial exception protects important constitutional values. In fact, McConnell has filed an amicus brief supporting the ministerial exception on behalf of a number of mainline Protestant denominations, including the United Methodists, the United Church of Christ, and the Presbyterian Church (USA), all of which skew left in American political terms. — MLM

Ministerial Exemption Miscellany

I was pleased to take part last night in an event at St. John’s Law School dealing with the ministerial exemption and the Hosanna-Tabor case.  The case and the doctrine have been discussed a good deal already, but for those who can’t get enough, here are some additional scattered thoughts.

1.  A perhaps somewhat pedantic point about names first.  I prefer “ministerial exemption” to “ministerial exception.”  From what I have seen in the briefing of the case, I am in the great minority.  My reasons are historical and linguistic.  The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act.  At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner.  The idea was that “exemptions” from generally applicable laws are constitutionally required in certain circumstances, and the ministerial “exemption” was part of the general doctrinal geist.   Read more

Drakeman’s “Church, State, and Original Intent”

Over the years, the Establishment Clause has become encrusted with various sorts of new meanings and applications.  I do not say this as a criticism (though I do think that some applications are regrettable) but merely as a description of the evolution of constitutional law as time has passed.  Those who are interested in a thorough and superb treatment of the original meaning of the Establishment Clause (and the original intentions of the framers, which is a different issue than the original meaning) will very much enjoy Donald L. Drakeman’s excellent Church, State, and Original Intent (CUP 2009), in which Drakeman uncovers evidence that the Establishment Clause was meant originally to do nothing more than forbid the establishment of a national church (as in England).  The publisher’s description follows.  — MOD

This provocative book shows how the United States Supreme Court has used constitutional history in church-state cases. Donald L. Drakeman describes the ways in which the justices have portrayed the Framers’ actions in a light favoring their own views about how church and state should be separated. He then marshals the historical evidence, leading to a surprising conclusion about the original meaning of the First Amendment’s establishment clause: the framers originally intended the establishment clause only as a prohibition against a single national church. In showing how conventional interpretations have gone astray, he casts light on the close relationship between religion and government in America and brings to life a fascinating parade of church-state constitutional controversies from the Founding Era to the present.

The New York Times on Richard Dawkins’ [Dangerous?] Evangelical Atheism, Post Two

Last week, I commented on the New York Timesprofile of evolutionary biologist and vociferous atheist, Richard Dawkins.  Post One of this two-part series described (1) Dawkins’ views and (2) how the overheated antipathy and rhetoric of The God Delusion (2006) may reflect atheists’ marginalization in contemporary society—in itself a legitimate concern.  (See additionally my Scholarship Roundup post—Faith no More: the Moral Atheist—where I suggest that religion’s record of immorality, for many, makes atheism a moral choice, not a nihilistic one.)

In this post, I criticize Dawkins’ position as described in his NYT profile: first, for its logical inconsistency and stubborn ignorance of its subject matter; and second, for its divisive rhetoric that fails to recognize the commonalities between his chosen source of meaning and his targets’.

I. Dawkins: The Uninquisitive Critic

Dawkins’ ignorance of the faiths he dismisses is alarming.  As Terry Eagleton says in his marvelously scathing 2006 review of The God Delusion, Dawkins illustrates and purports to challenge no more than “vulgar caricatures of religio[n].”  Eagleton responds to this facile exercise by speculating, “What . . . are Dawkins’s views on the epistemological differences between Aquinas and Duns Scotus?  . . . Rahner on grace or Moltmann on hope?  Has he even heard of them?”

Yet Dawkins readily, proudly, admits that the answer is no.  He scoffs at the suggestion that he study the history and intricacies of the faiths he rejects—study tantamount, in his view, to researching fairy tales.  In this way, Dawkins simply refuses to engage in his critics’ conversation.

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Among the Creationists: What’s so Funny ‘Bout Peace, Love, and Understanding?

Early next year, Jason Rosenhouse, associate professor of Mathematics at James Madison University, will publish Among the Creationists: Dispatches from the Anti-Evolutionist Front Line with Oxford University Press.

Rosenhouse, a believer in evolutionary theory, was puzzled—as am I, admittedly—that so many Americans still insisted that God created the world and human beings 10,000 years ago precisely as described in Genesis (in December 2010, Gallup reported that a staggering 40% did).  In the hopes of understanding why, Rosenhouse began attending Creationist events around the country.  In fact, Rosenhouse did so for ten years.

What he discovered challenges the conventional characterizations of Creationists as uninquisitive Bible-thumpers; rather, Rosenhouse encountered Creationists of many stripes and, through congenial discussion, learned their views could enrich his own, even if his belief in evolution remained intact.

Rosenhouse’s approach exemplifies the laudable objective of mutual respect that figures like Richard Dawkins sorely lack (see my Commentary posts on Dawkins here and here).  Rosenhouse did not become a Creationist in his journeys, and I speculate that he did not convince any Creationists that evolution was valid.  But I admire Rosenhouse’s genuine attempt to understand and treat with respect views different from his own.

Read OUP’s description of the book after the jump.  Also, read Rosenhouse’s brief description of his book here. Read more