Posted on by Marc O. DeGirolami

Obama Administration Files Motion to Dismiss in Contraception Mandate Case

Back in November, Belmont Abbey College sued Secretary of Health and Human Services Kathleen Sebelius after the Obama Administration announced the original HHS mandate — the one in which religious entities like the Catholic Church would be compelled to list and pay for contraceptive and abortifacient products right under the terms of their employee health plan.  That mandate, and not whatever modification the President suggested on February 10, now has the force of law.  The Obama Administration itself made the original mandate the final rule.

The Department of Justice has now filed a motion to dismiss.  DOJ takes no position in this motion on the constitutionality of the mandate, or on its permissibility under the Religious Freedom Restoration Act.  It further admits that the original mandate, and not the February 10 proposed modification, has the force of law (see p.6).  Instead, DOJ says that Belmont Abbey College (A) might have its health plan grandfathered; (B) can’t demonstrate that it will suffer an imminent injury (because it will not be subject to the mandate until 2014); and (C) has not shown that the case is “ripe” for review under the justiciability doctrine of ripeness.

I am not familiar enough with which health plans get grandfathered-in to know whether (A) is a plausible ground for the motion.  (B) seems puzzling.  After all, the health care mandate which is itself the subject of the Affordable Care Act litigation is being litigated right now, with arguments scheduled before the Supreme Court at the end of March.  Yet that mandate to purchase insurance does not go into effect until 2014 either.

I am not a standing scholar, but (C) seems to me the least plausible ground for the motion.  The original contraception mandate now has the force of law.  Whatever may happen after the election with respect to the proposed  February 10 modification, the original mandate is now final — nothing “informal or tentative” about it.  Abbott Laboratories v. Gardner (1967).  Any hypothetical future modifications — bracketing the issue of whether they would work any appreciable change — are entirely speculative.  I’d appreciate illumination from readers who are expert in standing doctrine, however.

Posted on by Marc O. DeGirolami

Movsesian to Lecture on Equality for Christians in the Middle East

CLR’s Mark Movsesian will give a lecture on March 7 titled, “Equality for Christians in the Middle East: Yesterday and Today,” at 6:00 pm at the offices of the magazine, First Things.  Details at the link.

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Education & Belief: Constitution

Is government funding for distinctive and even religious schools plausible in America? Yes, under certain conditions.

American public education already includes a growing variety of non-uniform schools. Charters are the most obvious example. They are allowed to have a unique pedagogical mission; to be culturally focused (i.e., Hebrew or Turkish, but not Jewish or Muslim); and to govern without union contracts. Religious groups can even manage charters through non-denominational foundations, and although the schools may not be religious in content or tone, they may provide voluntary religious “wrap-around” services on either side of the school day.

Online learning such as Florida Virtual Schools provides another example. Internet courses offer kids access to academic subjects that their neighborhood schools may not provide and can cater to a variety of special needs and family preferences.

Some states allow vouchers or tax credits that parents can take to alternative schools– not only pedagogical, but also philosophical and religious in nature. This arrangement is less common, but it comes closest to the educational pluralism in other nations.

Other innovations affect the uniformity model, such as the teacher training offered by Teach for America. In contrast to the typical state licensure procedure, TFA places high achieving graduates of elite universities in classrooms after a summer training program – not an Education degree.

These innovations are small in scale compared to the scope of traditional public education. However, they exercise an outsized influence on our imaginations and offer concrete experiences of diversity in teacher training, funding, governance, delivery and even, in some cases, religious content. Taken together, they offer hope that “public education” might come to mean something quite different from the uniform, state-control model designed in the 19th century. Read more

Posted on by Marc O. DeGirolami

Classic Revisited: Nisbet, “Twilight of Authority”

Recent events have me thinking about the American sociologist Robert Nisbet’s old classic, Twilight of Authority (1975).  Published in some sense in response to the Watergate disaster, the book’s thesis was that the distinction between the cultural or social and the political is vanishing, as the historical mediating institutions of authority —  family, religion, and community, among others — all of which are hierarchical in nature, are being replaced by allegiance to the state, which in turn absorbs the functions previously performed by other private institutions.  The thesis is not particularly unique, and certainly did not originate with Nisbet.  But Nisbet gives it unique and elegant expression in this volume.

And here is an old essay of Nisbet’s, from the excellent but sadly now defunct journal, The Public Interest, entitled, Public Opinion vs. Popular Opinion.  A bit from the essay, to give you a taste of Nisbet’s style:

A true public, as A. Lawrence Lowell stressed in his classic work on public opinion more than a half-century ago, is at bottom a community: built, like all forms of community, around certain ends held in common and also around acceptance of the means proper to achievement of these ends. Not the people in their numerical total, not a majority, nor any minority as such represents public opinion if the individuals involved do not form some kind of community, by virtue of possessing common ends, purposes, and rules of procedure. Public opinion is given its character by genuine consensus, by unifying tradition, and by what Edmund Burke called “constitutional spirit.”

Popular opinion is by contrast shallow of root, a creature of the mere aggregate or crowd, rooted in fashion or fad and subject to caprice and whim, easily if tenuously formed around a single issue or personage, and lacking the kind of cement that time, tradition, and convention alone can provide. Popular opinion is an emanation of what is scarcely more than the crowd or mass, of a sandheap given quick and passing shape by whatever winds may be blowing through the marketplace at any given time. It would be incorrect to say that popular and public opinion are totally unconnected.  What proves to be public opinion in a community is commonly generated by popular opinion, whether in majority or minority form; but it is only through a process of adaptation or assimilation-by the habits, values, conventions, and codes which form the fabric of the political community-that popular opinion ever becomes what we are entitled to call public opinion, the opinion that is in fact more than opinion, that is at bottom a very reflection of national character.

Posted on by Marc O. DeGirolami

Bronx Household of Faith Obtains TRO on Free Exercise Grounds

CLR Forum’s educated readership knows that the Free Exercise Clause was interpreted in Employment Division v. Smith to mean that neutral laws of general application which do not specifically target religion for discriminatory treatment are constitutional.  Of course, the majority of the Court in Smith, unlike some of Smith’s most ardent academic supporters, was quite friendly to legislative accommodations for religion.  Smith was about what the Constitution mandated, not what it permitted.

Yet in the fabric of Smith was an important exception — or, perhaps it’s not even right to call it an exception, as it seems to follow from the very rule that Smith announced.  Where a law is not neutral, or not of general application, it warrants the strict scrutiny that applied in the Court’s pre-Smith free exercise jurisprudence. 

And that seems to be the reason for Judge Loretta Preska’s decision to issue a temporary restraining order enjoining New York City’s Board of Education from barring Bronx Household of Faith and all other religious organizations from using public school buildings for religious worship services.  Readers will remember that the Second Circuit, in an opinion by Judge Pierre Leval, held that the municipality could exclude “worship” even though (under Good News Club v. Milford Central School), it could not exclude “religious expression.”  And the Supreme Court, regrettably, denied cert.  But the Second Circuit’s decision did not involve a free exercise claim, and Bronx Household of Faith had preserved that claim. 

If one looks at the memorandum in support of Bronx Household’s motion for the TRO, the free exercise claims involve allegations of non-neutrality (the policy of exclusion specifically targets religious worship, and even more specifically targets Judeo-Christian religions which engage in organized worship) and the lack of general application: the policy is “substantially underinclusive” — it allows “prayer, singing hymns, and religious teaching,” while at the same time excluding worship.  The district court also agreed with the plaintiff’s Establishment Clause claim as a reason to grant the order.

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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.

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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

Posted on by Marc O. DeGirolami · 6 Comments

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.

Posted on by Marc O. DeGirolami

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.

Posted on by Mark Movsesian

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.