Cardinal Suggests Legal Challenge to Contraception Mandate

In a letter he sent Friday to Catholic bishops, Cardinal Timothy Dolan, President of the US Conference of Catholic Bishops, stated that, notwithstanding President Obama’s invitation to “work out the wrinkles,” talks between the Conference and the White House on the revised contraception mandate have not gone well. According to the cardinal, White House staff have stated that the Administration will not expand the the exemption for religious institutions and have suggested the bishops listen to more “enlightened” voices within Catholicism. As a result, the cardinal wrote, the Conference is considering litigation:

In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.

Hosanna-Tabor  is not directly relevant to this issues surrounding the mandate, of course, but I take it the cardinal is using the case more or less rhetorically. In Hosanna-Tabor, the Court unanimously rejected the Administration’s assertion that the  Free Exercise Clause does  not apply to a church’s employment of its minsters — as the Court stated, a rather “remarkable” assertion that suggests an unfortunate antipathy for the special protection the American Constitution offers religious communities.

Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

Kristen A. Carpenter (U. of Colorado Law School) has posted Individual Religious Freedoms in American Indian Tribal Constitutional Law. The abstract follows.

Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.


Law and Religion Events at Touro

Courtesy of CLR friend Sam Levine, here are a few events at Touro Law Center which look terrific and may be of interest to readers.

First, Nathan Lewin will be giving a lecture on March 20 entitled, “The Legal Profession and the Orthodox Jewish Lawyer — Change Over Half a Century.”  Details here.

Second, on May 2-4, Touro is hosting the biennial Conference of Religiously Affiliated Law Schools, with the theme: “The Place of Religion in the Law School, the University, and the Practice of Law.”  The full conference announcement with speakers listed is here.  My colleague, Mark, will be speaking at the conference.

Stahl on Local Government, Vote Appropriation and “the Jewish Question”

Kenneth Stahl  (Chapman U. School of Law) has posted Local Government, One Person/One Vote, and the Jewish Question. The abstract follows.

This article argues that the Supreme Court’s jurisprudence regarding the application of the ‘one person/one vote’ rule to local governments, while often considered hopelessly confused, actually contains an internal logic that reflects the ambiguous legacy of the Enlightenment in this country. There are three broad strands within the one person/one vote jurisprudence: the first, beginning with Avery v. Midland County, requires cities to apportion votes based on a ‘one person/one vote’ principle; the second, exemplified by Ball v. James, permits certain municipalities to apportion votes according to a ‘one dollar/one vote’ formula; and a third, captured in Holt Civic Club v. City of Tuscaloosa, gives the state plenary power to allocate votes with regard to some local government matters. Although these three strands seem impossible to reconcile, they are all consistent with an Enlightenment jurisprudential project to consolidate the power of the central state by suppressing the ability of entities exercising authority over particular territories, such as local governments, to challenge the state’s hegemony. Read more