The Immanent Frame on the HHS Mandate

I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law.  It is in general a terrific blog.

That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there.  Of course, there are many things to discuss with respect to the mandate, and law is only one of those things.  It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things.  But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights.  The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is.  There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).   

One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect.  Here is a portion of Professor Sands’s comments:

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

I’ll confine my comments to the statements about the law, which are wrong in several respects.  Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law.  These statutes apply against the government, not against individual private employers.  So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.

Professor Sands’s statement is also potentially misleading with respect to constitutional law proper.  It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong.  If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application.  That proposition is currently being litigated, and we will see what courts hold.  If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.

Denk on the Eighth Amendment, Catholic Teaching and Death Penalty Discourse

Kurt M. Denk, S.J. (Boston College Law School) has posted Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse. The abstract follows.

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis “necessarily embodies a moral judgment.” This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

Wasserman on the Jurisdictional/Merits-Based Distinction Within the Ministerial Exception

If you read the Supreme Court’s Hosanna-Tabor decision, you may have noticed footnote 4, which said this:

A conflict has arisen in the Courts of Appeals over whether the min­isterial exception is a jurisdictional bar or a defense on the merits . . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear[the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception

Howard Wasserman (FIU) has a very nice piece in the University of Pennsylvania on-line journal about this distinction, where he defends the merits-based reading of the ministerial exception and criticizes the jurisdictional reading.  The distinction makes a difference because on the jurisdictional reading, the ministerial exception acts as a categorical bar on the power of courts to hear these sorts of cases, while on the merits-based reading, it allows courts to hear these cases and instead “bars” legislatures from dispensing with constitutional protections for religious organizations who employ “ministers,” as legally defined.

It may not surprise readers to know that I agree with Howard’s (and, now, the Court’s) view of the ministerial-exception as a merits-based limitation, in part because of my own view that the ME instantiates — or should be read to instantiate, per Hosanna-Tabor — a kind of common-law, particularistic constitutionalism which invites courts to make fine distinctions in arriving at conclusions about whether the ME should apply.  That approach would not work if the ME were treated as a categorical bar.  Indeed, I take some of the historical reasons for finding the ME to be a worthwhile doctrine not to be categorical, but to be one of a series of reasons which courts ought to countenance when examining ME defenses.  But whatever one’s position, anyone interested in the federal courts component of this issue will enjoy Howard’s careful piece.

ADDENDUM: I had one little afterthought about Howard’s claim, which I wanted to share and am curious how he would respond.  It seems to me that the difference between a jurisdictional bar and a merits-based defense appears very distinct at the edges.  One is governed by a Rule 12(b)(1) disposition, while the other is governed by Rule 12(b)(6) after some inquiry into the merits.  But in practice, might it not often be the case that the more powerful one makes the merits-based defense, the more it will begin to resemble a jurisdictional bar?  Indeed, as Howard notes, dismissal on 12(b)(6) grounds is generally with prejudice, while a 12(b)(1) dismissal is without prejudice.  But if one constructs an extremely powerful affirmative defense (one which, in practice, often means victory for the defendant religious organization), doesn’t that give the religious organization the best of both worlds — something which for all intents and purposes looks like an outright bar, and where the case is then also dismissed with prejudice?

Duncan on Christian Libertarianism

Richard F. Duncan (U. of Neb. College of Law) has posted By the Waters of Babylon: Christian Libertarianism in the Age of Obama. The abstract follows.

In this short essay, I compare Secular America to ancient Babylon in order to convey my understanding of what it is like to live as a faithful Christian in a postmodern secular state. Just as the Jewish people wandered in exile in ancient Babylon, Christians wander today in an America that has rejected our God.

My pragmatic proposal for Christians living in the Age of Obama is to recognize that Babylonian law will typically reflect the morality and values of Babylon, not those of the America of our forefathers. The path to religious freedom in our society lies in an explosion of privatization, in a radical shrinking of the role of government in the lives of its citizens. As government retreats, religion will be free to advance. As government programs are cut and resources are returned to private citizens, we will be free to educate our children as we believe is best, to support causes we believe are right and good, to live our lives in accordance with our understanding of the good life and based upon our own theories of justice. In other words, a small Babylonian government should be the goal of Christians who find themselves living by the waters of Babylon here in Secular America.