Posted on by Mark Movsesian · 1 Comment

Leave Wins

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Like most Americans, I didn’t pay close attention to the Brexit campaign. It seemed a foregone conclusion. The prediction markets were signaling that a vote to leave the EU was a long shot; the polls indicated that Remain was comfortably ahead; the stock markets were quiet. Besides, anti-EU protests never amount to anything. When national majorities vote against the EU in referenda, the EU always finds a way around them. In politics, elites usually get their way, and Europe’s elites, including Britain’s, are solidly pro-Europe. If nothing else, one would have thought inertia would keep Britain in the union. The EU always manages to chug along, notwithstanding all manner of crises. Why would this time be different?

But it seems it was. A small, but clear majority of Britons voted Leave, and, at this writing, the authorities say they will honor the choice. The skeptic in me suspects a trick, but more experienced observers tell me that a stall-and-vote-again strategy won’t work this time. The vote was definitive and, besides, people are too angry to risk irritating them further. The EU says it wants to move the process along quickly. Sometime in the next several months, Her Majesty’s government will trigger Article 50 of the Lisbon Treaty and start the divorce.

Many factors influenced the vote. Economics had a role. The Leave side argued that membership in the EU was holding down British growth, and that the UK could strike better trade deals on its own, notwithstanding President Obama’s warning that, without the EU, Britain would go to “the back of the queue.” But nationalism and cultural issues were more important: irritation at a loss of sovereignty to Brussels; worries about the effects of mass immigration; resentment of a cosmopolitan elite that demeans local ways; a sense of creeping social disorder, epitomized by recent satires like Martin Amis’s 2012 novel, Lionel Asbo: State of England. A fascinating survey I saw on Twitter reveals that Britons who see “multiculturalism” as a “force for ill” voted 81% in favor of leaving the EU.

It’s striking how powerful nationalism remains in Europe. Although elites have been trying to suppress it for decades, the affection national populations have for their own communities and traditions remains strong. Whenever I go to Europe, I ask people whether they identify with Europe or their native cultures– “What are you?” With the exception of one or two academics, I have yet to meet anyone who responds, “European.” They are British, or French, or Dutch, or Czech. And what is the contemporary “European” identity, anyway? Managerial government, neoliberal economics, and progressive human rights—not the stuff to inspire deep loyalty.

By contrast, national identities do inspire deep loyalty. That’s why they persist, more so in some countries than others, of course, but everywhere in Europe. Thursday’s vote shows that a strong sense of national identity continues in Britain. Even Scotland’s vote to remain in the EU, which one might first see as a rejection of nationalism, can be explained in nationalist terms. The Scots are using EU membership as their own mark of national identity, a way of distinguishing themselves from their neighbors to the south.

Of course, not all Britons are enthusiastic about national identity or dubious about multiculturalism. The vote reveals a deeply divided country. The Remain side reacted to Thursday’s vote with fury and despair. Young Britons, in particular, are decrying the lost opportunities for travel, work, study, even love, which they say will result from Britain’s leaving the EU. (I’m not sure how realistic these worries are, especially the last). Older, backward Britons betrayed their country’s future! But Thursday’s vote reveals that commitment to multiculturalism and European integration isn’t a majority sentiment in Britain, at least not yet, and that the nation isn’t so ready to give up on its own, particular past.

Posted on by JCPW

Dispatches from Kabul: French Words and Fighter Jets

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Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

There’s an art gallery just off Armenia street in the Mar Mikhail district of Beirut that sells a variety of novelty goods – soap from Aleppo, hand-stamped Iranian linens, black and white photographs from the Lebanese Civil War, books on art. As I was perusing the shelves I came across a notebook with text clippings and war motifs pasted to its cover, a dècoupage of French words and fighter jets. Along the bottom of the front cover there was a phrase: Parce que l’incohérence est preferable à l’ordre qui deforme. It’s a quote from the French philosopher, Roland Barthes, which translates directly to: incoherence is preferable to an order that deforms. I haven’t read Barthes, nor do I claim expertise in French post-structuralism or constructivism or semiotics, but taken on its face, and in light of the unstable political systems in which I live and work, it gave me pause. Dans quelle mesure cette déclaration est-elle correcte? To what extent is that statement true? Precariousness becomes a form of identity in places where nothing sticks – not ideologies, not empires, not armies – but surely chaos and disorder is the regrettable result of circumstance, not rational belief. The fight for successive orders is the history of war, and I imagined Barthes’ words in the mouths of radicals from Raqqa to Kandahar.

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In the late afternoon, the church bells at St. George’s ring out loud and clear across the Martyr’s Square in Beirut, and it feels, for a moment, as if you’re standing in front of the Basilica di Santa Maria Maggiore in Rome, the Marian church that inspired the cathedral’s neoclassical design. Soon after, the call to prayer begins, projected from the 72-meter- Read more

Posted on by Mark Movsesian

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwell, the ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Posted on by Marc O. DeGirolami

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company….The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.

Posted on by Marc O. DeGirolami

#NeverLiberal

A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”

Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:

The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?

Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?

Posted on by Mark Movsesian

USCIRF Issues Annual Report

The U.S. Commission on International Religious Freedom (USCIRF) has released its annual report, finding that that religious freedom is under “serious and sustained assault” across the globe. The report, which covers the period from February 1, 2015-February 29, 2016, highlights religious freedom violations in more than 30 countries, including China, Sudan, North Korea, Nigeria, Pakistan, Iraq and Syria. It cites abuses by both state and non-state entities.

Posted on by Marc O. DeGirolami

Chinese President Warns of “Overseas Infiltration Via Religious Means”

This AP story reports that proponents of religious freedom are fearful of an increase in religious persecution in China following Chinese President Xi Jinping’s comments at a Beijing conference where he warned against “overseas infiltrations via religious means.” Followers of various religions have already suffered numerous forms of persecution, including Muslims being banned from wearing veils and beards, imprisonment of Catholic clergy members, and the removal and destruction of Christian symbols.

Despite China’s history of religious persecution since the Communist takeover in 1949, the number of Christians in the country has continued to increase. The story reports that according to the Center for the Study of Global Christianity, China’s 111 million Christians make it the world’s third largest Christian country behind only the United States and Brazil.

Posted on by Marc O. DeGirolami

A Few Thoughts on the Nature of Substantial Burdens on Religious Exercise

I’ve put them down over at the Liberty Law blog. A bit:

Making any sense of the inquiry would require adopting some definitions. A burden on religious exercise is a weight on it—or, less, metaphorically, it is simply an interference with religious exercise. “Interfere” is the term used by the Religious Freedom Restoration Act in its “Congressional Findings and Declaration of Purpose”: “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Interference may be intentional or unintentional, but it is interference in either case. Interference might be compulsion to do or not do certain things, but it also includes any governmental act that would frustrate the claimant’s capacity to exercise his or her religion. A governmental act that interferes with the ability of a claimant to believe or practice his or her faith burdens it.

What about “substantiality”? Here, the text of another religious accommodation statute, the Religious Land Use and Institutionalized Persons Act of 2000, suggests an answer: The substantiality of the burden is to be measured against the “system of religious belief” of which the religious exercise at issue forms a part. A system is a group of interdependent items—in this case religious beliefs and practices—that together constitute a unified whole.

This is a small fragment of what will be two longer reflections on the subject: one in an on-line symposium of the Illinois Law Review and another in a player to be named later. More soon.

Posted on by Marc O. DeGirolami

Supplemental Briefing in Nonprofit Contraception Mandate Litigation Filed

The claimants and the federal government have now both filed their supplemental briefs, as requested by the Supreme Court in the order I discussed here. Reply briefs are due April 20.

After denying that any change to what it presently offers to nonprofits is needed, the basic thrust of the government’s brief is that (1) the Court’s proposal would not work for self-insured claimants; and (2) the Court’s proposal would only work for others “but only at a real cost to its effective implementation.” At page 15, the government says this about those claimants with insured plans: “In theory, however, the government could provide that the same  legal obligations arise following any request by an eligible employer with an insured plan for an insurance policy that excluded contraceptives to which the employer objects on religious grounds.” The exact mechanism through which this would work for self-insured plans remains unclear. The brief concludes by asking for a definitive resolution from the Court.

The claimants’ brief argues that (1) yes, as to insured claimants, there are many ways in which the employees of objecting claimants can receive the free coverage the government wants them to receive: it could impose a regulatory requirement on insurers to provide a separate plan for such employees, not backed by the threat of what are described as “draconian penalties” on the employers. Employees would have 2 insurance cards instead of 1; and (2) as to self-insured claimants, there is a related less restrictive means as well: “If commercial  insurance companies begin making truly separate contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges. Indeed, making such contraceptive-only plans available to employees of petitioners with self-insured plans would underscore that such coverage is truly separate from the coverage provided by petitioners that use commercial insurers, as employees of other employers would be receiving essentially the same contraceptive-only policies.” (20)

Stay tuned.

Posted on by Marc O. DeGirolami

The Supreme Court Order in the Little Sisters of the Poor et al. Cases

This week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

I can’t really improve on the insightful commentary of my friend, Rick Garnett, on what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies.

But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure through a trust called the Christian Brothers Employee Benefits Trust. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not shifting it from the employer.

Something to watch in the upcoming briefing.