Posted on by Mark Movsesian

A Return to Civil Religion?

Yale sociologist Philip Gorski has written a thoughtful essay in The Chronicle of Higher Education (subscription required) on the need to accommodate both secular and religious values in American politics. Both secular and religious Americans should give up their maximalist claims, he argues, in favor of “civil religion,” a concept most closely associated in the United States with sociologist Robert Bellah:

What is needed, then, is a mediating tradition that allows room for both religious and political values, without subordinating one to the other. Such a tradition does exist. The sociologist Robert N. Bellah sought to describe it almost a half century ago in his famous article on “Civil Religion in America.” It comprises two main intellectual strands: civic republicanism and prophetic religion. Where liberalism emphasizes individual autonomy and a free market, republicanism is more concerned with civic virtue and participatory government. Consequently it is less wary of religion. Where religious conservatism stresses individual salvation and personal accountability, prophetic religion emphasizes human flourishing and collective responsibility. Consequently it is less wary of the state.

It’s an interesting idea, but I wonder whether civil religion would really do the job Gorski asks of it. At an abstract level, civil religion may resolve tensions between individualists and communitarians, between secular and religious Read more

Posted on by Marc O. DeGirolami

Plaintiffs Obtain Preliminary Injunction in HHS Mandate Suit

The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty.  These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the “religious employer” exemption of the HHS regulations.  Rather, Hercules is a for-profit, secular employer whose owners are individuals with objections of religious conscience — they are Catholics.  And Hercules is self-insured. 

Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits.  The court declined to address the plaintiffs’ constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act.  Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could “exercise religion” “merit[s] more deliberate investigation”), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means.  Here’s the Court on compelling interest:

Read more

Posted on by Mark Movsesian

The Wider Implications of the Clergy Sex-Abuse Crisis

Baylor University historian Philip Jenkins has written a provocative essay on the wider implications of the clergy sex abuse crisis for American Catholicism. It’s not just that victims have suffered, that clergy have gone to jail, that the Church has paid billions of dollars in lawsuits, that charitable work has been curtailed, and that several dioceses have declared bankruptcy. The scandal has also diminished the Church’s voice on debates about law and religion. Where once people would have paid respect to the Church’s views, even if they disagreed with them, the crisis has so weakened the Church’s moral authority that people dismiss the institution and its arguments entirely. For example, in Jenkins’s view, the ineffectiveness of the Church’s voice has greatly influenced the debate on same-sex marriage:

One great “might have been” involves same-sex marriage. In light of present realities, it is hard to recall just how fringe and even bizarre an issue this seemed just a decade ago, and a large section of the American public is Read more

Posted on by Marc O. DeGirolami

Walsh on Strossen on RFRA and Compelled Provision of Contraceptive Services

Over at our friend and former guest Kevin Walsh’s blog, one can see an absolutely extraordinary quote from ACLU president Nadine Strossen in the 1992 legislative history of the Religious Freedom Restoration Act, condemning Employment Division v. Smith for, in part, leading to a situation in which religious hospitals would be compelled “to provide abortion and contraceptive services.”

Take a look.

Posted on by Marc O. DeGirolami

Wheaton College Files Suit Against HHS Mandate

When it rains it pours.  Wheaton College, a Christian liberal arts college in Illinois, filed a federal lawsuit yesterday in the District of Columbia (the same jurisdiction in which Belmont Abbey filed) claiming that its constitutional and statutory rights are violated by the Mandate.  Causes of action include RFRA, free exercise, free speech, and an APA claim.  Wheaton’s specific complaint has to do with providing “health insurance for abortion-causing drugs, abortion procedures, and related services.”  “Wheaton College has no conscientious objection to providing coverage for non-abortion-causing contraceptive drugs and services.”  (¶ 39)

Posted on by Marc O. DeGirolami

States’ Lawsuit Against the HHS Mandate Dismissed

Yesterday was an active day for the HHS Mandate litigation.  The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness. 

The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.

Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs.  These conjectures were too speculative to confer standing.

Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to.  Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.

I’m sensing a pattern here…

Posted on by Marc O. DeGirolami

Belmont Abbey College HHS Mandate Suit Dismissed on Standing and Ripeness Grounds

Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment.  The grounds are lack of standing and ripeness.  The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status.  It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”

But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor.  It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.  “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.”  The court also dismissed the case for lack of ripeness.

There is an interesting feature of the case that appears in the ripeness discussion.  Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception.  The court said this:

This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.

Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking.  Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be.  Dismissal was without prejudice.

It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.

Posted on by rbonham1

How Important is Public Support for Religious Freedom?

In a recent post, Mark observes that “the idea that religious freedom has special importance, and merits special protection, is deeply rooted in America’s self-image. (In recent surveys, large majorities even of secular Americans agree that religion has had a good influence on American life). . . . [T]he commitment to religious freedom is part of our social contract and I don’t think it’s going to fade away. If politicians try to make the ‘religious freedom is an anachronism’ argument, I suspect they will fail.”

I haven’t seen the surveys, but I trust that Mark is right about them, and I hope that his political instincts are right as well.  It may well be true that there is broad public support in this country for religious freedom.  This is a heartening observation, not just for its immediate political implications, but because I think this sort of tradition/ identity factor offers another potentially important rationale for religious freedom (and one not entirely unrelated to the badly named “social contract” rationale I suggested last week). The basic idea, I take it, goes something like this: Whether or not religious freedom reflects some sort of universal truth, it’s been central to our own political tradition, and it’s part of our national identity.  So we should respect religious freedom because that’s important to what makes us what we are.

Still, I would register a couple of related doubts, or qualifications.  First, even if support for religious freedom is widespread in this country, I wonder how deep it runs– in terms either of real commitment or of genuine understanding.  The reported frequent opposition to Muslim cultural centers or mosques (even in places other than “Ground Zero,” where maybe the issues are more complicated) gives some reason for doubt.  And although it’s not certain what the ultimate outcome of the controversy will be, it’s also discouraging that so many academics and Americans generally manage to convince themselves that there’s no serious religious freedom issue with the “contraception mandate” on the basis of what strike me as patently flimsy rationalizations.  (Religious institutions aren’t “burdened” (even though they say and think they are), or most Catholics use contraceptives anyway, or the governmental interest is “compelling.”)  It may be that lots of Americans are happy enough to support religious freedom in the abstract, but whenever a specific issue comes along that they care about, or when the burden falls on some person or institution they don’t sympathize with, this support somehow disappears.

The other, related qualification I would make is that I don’t believe we should think of public support as sufficient in lieu of persuasive justifications, as if it were some independent variable.  Public attitudes are based in part on reasons that have been advanced over the years or centuries, and those attitudes can change pretty quickly when plausible reasons can’t be given for them.

–Steve Smith

Posted on by Mark Movsesian

Religious Groups Still Oppose Health Care Law

In the “Generalissimo Francisco Franco Is Still Dead” category, the Wall Street Journal reports that religious groups suing the Administration over the ACA’s contraceptive mandate are continuing with their lawsuits, notwithstanding today’s Supreme Court decision upholding the constitutionality of the statute. No surprise there: today’s decision didn’t address the groups’ First Amendment claims.

Posted on by Marc O. DeGirolami

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge “built on air.”  Actually, it is built on the Constitution and a federal statute, and we’ll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate — and not the putative change in plans alluded to by the President in February — is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: “In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.”  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.