Posted on by geraldrussello

Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.

Posted on by geraldrussello

Scribes and Holidays

Thanks to Marc and Mark for asking me to blog with them for the next few weeks. As I am just a law-and-religion amateur, being able to exchange thoughts with scholars of their caliber is a real honor.

To get things started, I haven’t seen much about this dissent a couple of weeks ago by a group of five Tenth Circuit judges from a denial of an en banc hearing in cases involving the contraceptive mandate as applied to non-profits.  The tenth Circuit, sua sponte, considered whether to rehear the cases en banc; the plaintiffs, who were challenging the mandate, had lost before the initial panel. The full court denied rehearing en banc , but five judges were sufficiently disturbed to write a strongly-worded dissent. The core of their argument is as follows:

Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative?

This is the real danger, I think. You have what John McGinnis calls a “scribal” caste without much (as Mark rightly notes) personal connection to traditional religious thought or concepts determining what is “really” important to the religion of the litigants.  It is no surprise that in such cases, the judges favor the state, because how serious could religious people actually be about matters the scribes see as unimportant?

A second, non-legal topic. My wife and I have three grade-school children, and for the first time this year, I heard multiple conversations over the summer about the multitude of school holidays that need to be accommodated into the schedule. Not just Rosh Hashanah, Yom Kippur, Christmas and Easter, but also Eid and the Lunar New Year are now recognized in the New York public schools; the Hindu festival Diwali is also being considered. So on the one hand, legal scribes reject accommodation for beliefs not considered “core,” yet other arms of the state are increasingly conceding the centrality of expression of religious beliefs in a very public way. Since as a general matter, I believe culture eventually prevails over formal legal doctrine, this kind of contrast is something to watch.

Posted on by Marc O. DeGirolami

Garnett on Tax Exemptions for Religious Institutions

Rick Garnett has a very good short piece over at the Washington Post on a newly controversial issue: tax exemptions for religious institutions. It’s one in a series of short essays on the subject. Here is the beginning:

Instead of asking whether churches and religious organizations deserve to be tax-exempt, we should ask why governments should be able to tax them at all. Taxation, after all, involves interference by the state, and in a free society such interference needs to be justified.

The power to tax involves the power to destroy, as Daniel Webster argued in the Supreme Court nearly two centuries ago. While our government does have the right to levy taxes, it’s only because “We the People” have authorized it to do so — in order to raise the funds needed to provide for the common good. But should we give our government this “power to destroy” over churches and religious institutions?

Rick contends that the answer to this question is ‘no.’ For a contrary view, contending that because Americans are “abandon[ing] organized religion,” it is time to tax churches, see this effort in the same series by David Niose, legal director of the American Humanist Association. Mr. Niose’s essay contains a few errors, such as the suggestion that a “non-Christian” homeless person would be denied care by a Christian charity on religious grounds. But it does accurately reflect the increasingly popular view that tax exemption for religious institutions is an “extraordinary handout.”

For some reflections of my own on the historical premises of tax exemption for religious organizations, and the breakdown of those premises (as reflected, in part, in Niose’s piece), see this post.

Posted on by Mark Movsesian · 2 Comments

Won’t Somebody Please Think of the Lawyers?

Pope_Francis_in_March_2013I’ll leave it to others more knowledgeable than I to assess the changes Pope Francis announced this morning with respect to the procedure for granting annulments. To an outsider, the changes certainly seem sweeping. Francis has eliminated the requirement that two tribunals agree to grant an annulment — a kind of mandatory appeal procedure. Now, the ruling of only one tribunal will suffice. Moreover, unlike in the past, the tribunal need not contain an expert in canon law. Indeed, the number of judges on the tribunal has been reduced from three to one.

In addition, the reforms greatly expand the authority of the local bishop to grant annulments. (For what it’s worth, in my own Armenian Orthodox Church, divorces–we don’t have annulments–are handled by the local bishop in a more or less informal process). If there is an appeal from a tribunal’s decision, the local bishop will hear it, rather than church courts in Rome–though a second appeal would go to Rome. In some cases, where grounds for annulment are “evident,” the bishop can grant an annulment in an even more expedited process. Papal biographer Austen Ivereigh told the Washington Post that Francis’s granting these powers to local bishops is “the most-far reaching reform to the Church’s nullity process in 300 years.”

As I say, I will leave if for others to assess the effect of all this — whether the benefits that come from streamlining the process outweigh the danger that unwilling people, who don’t want their marriages annulled, will be railroaded — and what the impact will be for the upcoming synod on the family. As to that, my guess is that some of the heat has been taken off. It would only be reasonable to wait to see how these new reforms work before tackling other neuralgic issues, like communion for divorced and remarried Catholics who have not received annulments. But, as I say, I’m an outsider.

There is one thing that strikes me, however, as a professor at a Catholic law school. As a result of the new, streamlined process, canon law will be even less important to the lives of most American Catholics than it already is. In America, anyway, canon law is, in practice, mostly a matter of marriage annulments. If you don’t need canon law for that, what do you need it for? Chad Pecknold tells the Washington Post that many of his canon-lawyer friends are thinking of a new line of work. No wonder.

I do wish the Vatican had considered all this. Do they have any idea how hard it is to convince American law students to take canon law? And haven’t they heard about the employment crisis for American lawyers?

Posted on by Marc O. DeGirolami · 1 Comment

Now Comes the “Museum of the Bible”

This story reports on the arrival in Washington, D.C. of a new museum, the “Museum of the Bible,” whose collection will include “pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis.”

Notwithstanding this scattershot miscellany, the story seems determined to find a controversial church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is “dominated by monuments to men.” Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., “To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap”; “The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”

But perhaps all of this is too much fuss over a development that secular critics of

"Creation" Museum
“Creation” Museum

the museum might welcome. Artifacts that get their own museums are probably on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs–affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced “the death of the Cathedral.”

As for the American religion that needs defending against the assault of the museum, that’s nearly perfectly summarized in the first paragraph of the story (though the final word “instead” seems entirely out of place):

In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.

Posted on by Mark Movsesian

On the Influence of the Scribes

At the Liberty Law site, my friend John McGinnis has a very interesting post on what he calls America’s “scribal class.” These are people – professors, journalists, opinion writers, lawyers, even entertainment industry types – who set America’s cultural and political agendas. John writes that they have enormous power, and all skew one way: Left.

John extrapolates from a recent study on the liberalism of American lawyers:

Academics in the humanities and social sciences set a long-term agenda for the country by educating the young and by shaping the categories of thought. The news media shapes the shorter-term political agenda by deciding what to emphasize in its coverage and how to spin it. Lawyers, whom Tocqueville almost two centuries ago understood as the aristocrats of the United States, are experts at using the courts and the burgeoning administrative state to shift social policy. And the study leaves out the entertainment industry and government bureaucrats, groups that are also on the left.  Entertainers help set social agendas, and bureaucrats often help advance the programs of liberal politicians and obstruct those of conservatives.

Thus, the left owns the commanding heights of our democracy. Given this power, it is a surprise that the right wins as many elections as it does. To be sure, modern information technology has created a more dispersed media world and permitted conservatives a somewhat greater voice. But the imbalances remain dramatic.

John goes on to contrast the scribal class with “producers,” those people who “produce material goods and non-information services for a living.” Producers, he suggests, do not skew Left, or at least not as much as the scribal class. They serve as a kind of cultural counterweight, to the great annoyance of the scribes.

John is right in his assessment of the cultural and political leanings of the scribal class, and the outsize influence members of that class have over the direction of the country. He’s not as persuasive when it comes to the producers. Corporate America and the cultural Left often find themselves on the same side of public debates, as last spring’s controversy over the Indiana RFRA law, and last summer’s reaction to Obergefell decision, demonstrate. Corporate America really doesn’t stand in opposition to the Left, unless one defines the Left purely in economic terms.

John minimizes one factor, though, and that is the scribal class’s almost total disregard of religion, at least traditional religion. True, the media sometimes presents religious minorities in a flattering light, usually as examples of a benign multiculturalism. But there is little respect for the legitimacy of religious convictions as such, especially the convictions of traditional believers. There is little knowledge even of basic facts.

Witness, for example, yesterday’s reaction to Pope Francis’s statement on forgiving women who show contrition for having had abortions. The media has trumpeted the pope’s statement as a major, surprising departure from Catholic teaching, rather than a temporary relaxing of formal rules on who may grant absolution – as though the concept of forgiving sins was somehow alien to Christian doctrine. Pope John Paul II had relaxed the rules in the last Holy Year, in 2000, a fact most media failed to report.

To me, all this suggests two things, neither of which, I guess, is particularly new. First, religious conservatives must do a better job making inroads in the scribal class, or develop an alternative vehicle for expression, if they are not to be steamrolled entirely out of the public conversation. Second, conservatives should focus less on politics itself and more on the culture that drives politics – on hearts and minds, not election returns.

You can read John’s whole piece here.

Posted on by Marc O. DeGirolami

The Conditions in Which Private Groups May Perform Civic Functions

Here’s an insightful post by Paul Horwitz on the Garnett, Inazu, McConnell essay that I commented on a few days ago. Paul introduces his post with a discussion about contemporary attitudes toward government’s “insist[ence] that private organizations comply with its own sense of the good,” and he claims that though many people continue to believe that such insistence is illegitimate, “the momentum” within the elite classes (or call them how you will) “is on the other side.” I am always pleased when Paul shares at least some of my sensibilities.

One more thought connected to Paul’s comment on these interesting matters. Tax exemption for private nonprofit organizations made a certain amount of sense when two conditions obtained: (1) the size of government, and the scope of its role in American social life, was a good deal smaller than it is today, thereby both necessitating and making space for the involvement of private nonprofit institutions for the support of civil society; and (2) the view that these private institutions could and should play an independent role in shaping civil society in accordance with their own senses of the political and moral good, senses that might diverge in important respects from the state’s.

The conditions are mutually reinforcing and mutually dependent. As government becomes larger, both the need and the space for private institutions shrinks as does the perception that private institutions might actually have something of value to say in the way civic formation that is very different from what the state says. The “need” question is complex, because the breakdown of condition #1 would not necessarily mean that we would see fewer private institutions performing the sort of work that they had performed in the past. Indeed, the increase in the size and scope of the government’s role might itself necessitate greater numbers of private institutions to help it fulfill its enlarged offices. But we should expect to see a sharp decline in private institutions engaged in civic formation whose values differed sharply from the government’s. Whatever public/private partnerships endured after the fall of condition #1 could not continue to operate under the premises of condition #2. One might say that this is to be expected–indeed, it might be said to validate a hoary separationist rallying cry: if private institutions want to be in the business of performing civic functions, they ought to expect pressure to conform to the government’s preferred views of the civic, political, and moral good (a footnote: I’m always struck by how decidedly Protestant the theology supporting these kinds of separationist arguments seems). All true, though one could offer in return that such increased pressure is not inevitable but the product of a historical contingency: the breakdown of the two conditions above.

Posted on by Marc O. DeGirolami

Biblical Intratextualism

Those familiar with some of the schools of constitutional interpretation will know what is commonly called the intratextualist or structuralist method of divining meaning. The idea is to understand the meaning of a word or phrase by searching out and comparing like words or phrases in the same document in order to arrive at a unified meaning. There is a kind of horse-sense fundamental principle sitting somewhere beneath the method: words used at different points in the same document ought to mean the same thing throughout the document, and variations on word usage ought to be understood as signifying difference of meaning. The meaning of the words in the document should render the document a coherent whole. The several usages of “necessary” in the Constitution, for example, are useful in teaching the virtues and vices of intratextualism.

But intratextualism is not just for constitutions. It is a more general approach to extracting meaning from text. Here’s an interesting passage from Robert Louis Wilken’s The First Thousand Years: A Global History of Christianity that describes early developments in Christian interpretation of the Old Testament. This is from the chapter on the great Origen of Alexandria (p.62):

Origen was to spend the rest of his life in Caesarea, and his most mature works were written there, including many of his biblical commentaries. He was the first Christian to write scholarly commentaries on books of the Old Testament, such as Genesis and Psalms, as well as on the New Testament, including the Gospel of John and the Epistles of Paul. Two features stand out in his commentaries: a deep respect, even reverence, for the words of the text, and the conviction that a spiritual meaning could be drawn from every passage of the Bible.

Consider his interpretation of the following passage from the book of Deuteronomy, for example: “If you walk in my statutes and observe my commandments and do them, then I will give you your rains in their season, and the land shall yield its increase, and the trees of the field shall yield their fruit.” (Deuteronomy 11:13-17). Origen begins by putting questions to the text. If “rain” is given as a reward for those who keep the commandments, how does one explain that this same rain is given to those who do not keep the commandments, and “the whole world profits from the common rains given by God”? This leads him to propose that the term “rain” can have another sense than water from the heavens, because in this passage it seems to refer to something that is given only to those who walk in God’s statutes and observe the divine law. It signifies something given “only to the saints.”

With the puzzling use of the term “rain” in the passage as a starting point, Origen proceeds to examine the term “rain” elsewhere in the Scriptures and discovers that it is sometimes used in a metaphorical sense. Moses, for example, said, “May my teaching drop as the rain, my speech distill as the dew” (Deuteronomy 32:1-2). In this passage rain is a metaphor for Moses’s words, and hence of the word of God. That is to say, in the Scriptures “rain” can have another meaning than the plain sense.

Posted on by Marc O. DeGirolami

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

A very interesting comment authored jointly by Rick Garnett, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act. A bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court’s recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action….

Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation….

We understand that new versions will address many or all of these issues. We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.

One thought that has occurred to me on the issue of “tax exemption” of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University’s tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within “civil society” that should in general not be touched by the government’s taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of “exemption” when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government’s power to tax.

[Update: I’ve amended some things in the post for clarity.]

Posted on by Mark Movsesian

The Superman Would Laugh at Exams

As we prepare to start a new academic year, the Wall Street Journal‘s Law Blog offers a rundown of some new courses at American law schools:

• At Pepperdine Law School in California, students will search for answers to contemporary problems in the Bible. “Law and the Bible” will explore “how the Bible addresses the challenging legal issues of our day—the breakdown of the family, the death penalty, abortion, poverty, climate change, gay marriage, human trafficking, immigration, and the separation of church and state.”

• At Harvard, students will be seeking advice from Friedrich Nietzsche.“The premise is that provocation by this Master Provocateur may be just the therapy that law students need,” says the description of “Nietzsche for Lawyers,” taught by criminal law professor Richard Parker. There’s no exam, but “soft drinks, wine and snacks will be provided.”

Further comment seems unnecessary.