Kalanges, “Religious Liberty in Western and Islamic Law”

This month, Oxford University Press published Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition (February 2012) by Kristine Kalanges (American University). The publisher’s description follows.

In Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition, Kristine Kalanges argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories. Kalanges suggests that while divergence between the two bodies of law challenges the characterization of religious liberty as a universal human right, the “dilemma of religious freedom” – the difficult choice between the universality of religious liberty rights and peaceful co-existence of diverse legal cultures – may yet be transformed through the cultivation of a world legal tradition. This argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophical ideas have been institutionalized.

Porterfield, “Conceived in Doubt”

This year, the University of Chicago Press will publish Conceived in Doubt: Religion and Politics in the New American Nation (forthcoming May 2012) by Amanda Porterfield (Florida State University).  The publisher’s description of the book follows.

Americans have long acknowledged a deep connection between evangelical religion and democracy in the early days of the republic. This is a widely accepted narrative that is maintained as a matter of fact and tradition—and in spite of evangelicalism’s more authoritarian and reactionary aspects.

In Conceived in Doubt, Amanda Porterfield challenges this standard interpretation of evangelicalism’s relation to democracy and describes the intertwined relationship between religion and partisan politics that emerged in the formative era of the early republic. In the 1790s, religious doubt became common in the young republic as the culture shifted from mere skepticism toward darker expressions of suspicion and fear. But by the end of that decade, Porterfield shows, economic instability, disruption of traditional forms of community, rampant ambition, and greed for land worked to undermine heady optimism about American political and religious independence. Evangelicals managed and manipulated doubt, reaching out to disenfranchised citizens as well as to those seeking political influence, blaming religious skeptics for immorality and social distress, and demanding affirmation of biblical authority as the foundation of the new American national identity. Read more

Garry Wills Puts the “Con” in Conscience

Here is a dyspeptic piece by Garry Wills which gets numerous things wrong about the nature of the conscience claim being asserted in response to the HHS mandate.  Under the heading, “The Phony Religious Liberty Argument,” Wills says:

The bishops’ opposition to contraception is not an argument for a “conscience exemption.” It is a way of imposing Catholic requirements on non-Catholics. This is religious dictatorship, not religious freedom.

Contraception is not even a religious matter. Nowhere in Scripture or the Creed is it forbidden. Catholic authorities themselves say it is a matter of “natural law,” over which natural reason is the arbiter—and natural reason, even for Catholics, has long rejected the idea that contraception is evil. More of that later; what matters here is that contraception is legal, ordinary, and accepted even by most Catholics.

The confusions in these short paragraphs are astonishing, particularly for a writer of Wills’s deserved reputation.  First, whether “most Catholics,” including Wills, “accept[]” contraception is completely irrelevant.  The issue is not what Wills, or any other dissident Catholic, thinks ordinary or accepts.  The issue is what those with authority to speak on behalf of the Catholic Church believe.  And we have strong evidence that they believe that paying for contraception and abortifacient services is anathema.  The Church is a hierarchical institution, and so it matters who has authority to speak on its behalf to the agents of the state.  Much as it may distress him, that’s not Wills.

Second, to say that opposition to the mandate represents “religious dictatorship” may sound good, but the substance of the comment is wrong.  No one — least of all “the bishops” — is preventing anyone from obtaining whatever products they like.  No one is monitoring anyone, no one is tracking the way that employees use their money, no one is stopping anyone else from using their money as they like.  The issue is not “dictatorship” — religious or secular — and this sort of overheated rhetoric is quite silly.  The issue is whether the state can compel the religious employer to pay for products for its employees as to which it objects in conscience (I am bracketing the question of what President Obama’s February 10 announcement does).  Obviously there are disagreements about that question.  But the resolution of that issue, one way or the other, is not evidence of “dictatorship.”  It’s something far short of that, but something we ought to attend to nevertheless.

Oversight Committee Holds Hearing on HHS Contraception Mandate

Congress’s Committee on Oversight and Government Reform is currently holding a hearing on the Administration’s HHS contraception and abortifacient mandate.  The title of the hearing is, “Lines Crossed: Separation of Church and State.  Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?”  The hearing is being live-streamed at the attached link.

Administration Did Not Consult Justice Department on Revised Contraception Mandate

I’m sure some readers will think of this as inside baseball, but it’s actually rather revealing. In response to questioning from Orrin Hatch (R-Utah) at yesterday’s Senate Finance Committee hearing, HHS Secretary Kathleen Sibelius admitted that HHS had not sought a legal opinion from the Justice Department before issuing last week’s “compromise” mandate on employer contraceptives coverage. Here’s the exchange, as relayed by the Deseret News, a Utah paper:

“The President’s chief of staff and press secretary have claimed that this mandate is consistent with the First Amendment, and the final rule you issued last Friday states that it is consistent with the First Amendment and the Religious Freedom Restoration Act . . . . Let me just ask you again, did HHS conduct or request any analysis of the constitutional or statutory religious freedom issues?” Hatch asked Sebelius. . . .

“Well we certainly had our legal department look at a whole host of legal issues,” Sebelius said.

Sebelius also acknowledged that she had not contacted the Justice Department for an opinion, which would be a common practice when facing a delicate constitutional question.

Hatch asked her, “Did you ask the Justice Department?”

“I did not. No sir,” she replied.

As the report suggests, executive departments and agencies routinely request the advice of the Justice Department on proposed regulations that implicate serious constitutional and statutory questions. In fact, a specific office at Justice, the Office of Legal Counsel, handles such requests, often on an urgent, rush basis (I know, I used to work there). So it really is remarkable that HHS did not seek OLC’s views on legal questions of this magnitude. It suggests that the Administration does not take these questions seriously, an attitude that may come back to haunt it — after the November election, of course.

First Lawsuit to Challenge the (Revised) HHS Mandate

The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius.  The plaintiff is a private non-profit with about 50-60 employees.  Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final.  This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.

I think the RFRA claim is a serious one.  One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in.  ¶¶ 17, 20.   One to keep an eye on.  (h/t Professor Friedman)