An Important HHS Mandate Decision: Standing & Ripeness Satisfied

The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI).  The case is important on the issues of standing and ripeness.  The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014).  The decision is complicated and has several moving parts.  Here’s the scoop, after the jump.

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Government Nonendorsement

Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month.  I am looking forward to participating in this terrific forum.

It is often said among scholars of religious freedom that there is no secular Establishment Clause.  When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement.  So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking.  Religion has special constitutional status in this area, or so it is often assumed.

Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement.  In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.

Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct?   In a draft article available on ssrn, I argue that it is mistaken.  In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself.   To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences.  In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions.  From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.

I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom.  With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude.  Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.

Renard et al., “Fighting Words”

The University of California Press has announced a collection of essays, edited 11288.110 by theologian John Renard (St. Louis), on religious justifications for violence, Fighting Words: Religion, Violence, and the Interpretation of Sacred Texts (2012). The publisher’s description follows:

One of the critical issues in interreligious relations today is the connection, both actual and perceived, between sacred sources and the justification of violent acts as divinely mandated. Fighting Words makes solid text-based scholarship accessible to the general public, beginning with the premise that a balanced approach to religious pluralism in our world must build on a measured, well-informed response to the increasingly publicized and sensationalized association of terrorism and large-scale violence with religion.

In his introduction, Renard provides background on the major scriptures of seven religious traditions—Jewish, Christian (including both the Old and New Testaments), Islamic, Baha’i, Zoroastrian, Hindu, and Sikh. Eight chapters then explore the interpretation of select facets of these scriptures, focusing on those texts so often claimed, both historically and more recently, as inspiration and justification for every kind of violence, from individual assassination to mass murder. With its nuanced consideration of a complex topic, this book is not merely about the religious sanctioning of violence but also about diverse ways of reading sacred textual sources.