Here’s a story for The Hill about RFRA and the HHS mandate by Elise Viebeck to which I contributed some thoughts. The story is right that RFRA had broad bi-partisan support back in 1993, including from the late Senator Ted Kennedy. Employment Division v. Smith elicited displeasure across the aisle. Different times.
Notre Dame Files HHS Mandate Complaint Against Obama Administration
The text of the complaint is here. A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa). A few thoughts about this complaint:
- The leading cause of action is RFRA (beginning at paragraph 202). This makes sense as it is the strongest legal claim.
- On the free exercise claim, have a look at paragraph 235. ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim. It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.” That technically is a claim about general applicability. A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment. But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
- Also look at paragraph 236. ND is not only making a claim about the lack of general application. It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs. That knowledge is in turn made the basis for a claim of “targeting” of religion. This claim, if accepted, implicates the “neutrality” component of the Smith test. This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g., the law of conspiracy).
- ND is also making an “excessive entanglement” claim which implicates the Establishment Clause. “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision. This sort of claim is also raised at paragraph 270 and following.
Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.
Constitutional Appoggiaturas
The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer — as a moment for loose impromptu brilliance. And in his exceptional piece, “Constitutional Cadenzas,” Dan Farber argued that there are sections of the Constitution which contain cadenzas — “instructions for the interpreter to improvise on the Constitution’s grand themes.” Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment’s Privileges or Immunities Clause as such sections. “[B]oth of these constitutional provisions,” he wrote, “call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration.” Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation — specifically, “transnational legal sources” and “contemporary social consensus” — the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius. The performer of the cadenza may know something about previous performers — he may perhaps take notice of past interpretations — but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.
I have a different musical metaphor in mind — the appoggiatura. The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody. In Italian, ‘un appoggio’ is a support or something to lean on in a moment of weakness or indecision. Like the cadenza, the appoggiatura is an embellishment — it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example. But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will. The appoggiatura cannot stray very far at all from the melody — it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after. It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.
What might be a constitutional appoggiatura? There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation. Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution. Each has an interpretive role to play. Madison put it this way in Federalist 49:
Paul Ryan and the Catholic Bishops
When the US Conference of Catholic Bishops issued its statement on religious freedom this month, critics complained the bishops were being inappropriately partisan. The bishops’ statement portrayed the Obama Administration’s contraceptives mandate as a major threat to religious freedom. Critics argued that the bishops shouldn’t have taken sides in an election year.
This week, there was evidence that Catholic social teaching cuts both ways. Yesterday, House Budget Committee Chairman Paul Ryan (R-Wisconsin) gave a speech at Georgetown University. Ryan is famous, of course, for proposing a budget that cuts the growth in federal benefits programs, like Medicare and Medicaid. Earlier this month, the Bishops Conference wrote Congress to oppose the proposal. The Ryan budget inappropriately burdens the poorest Americans, the bishops argued, and fails to meet “moral criteria.” At Georgetown, where 90 faculty members and priests signed a letter admonishing him for misunderstanding Catholic social teaching, Ryan defended himself on religious grounds. “I suppose that there are some Catholics who for a long time thought they had a monopoly of sorts, not exactly on heaven, but on the social teaching of our Church,” he said. (Ryan was perhaps referring to the Catholic bishops). “There can be differences among faithful Catholics on this.”
As an outsider, I’m not in the best position to evaluate whether Ryan is correct in suggesting that Catholic social teaching allows more room for debate about how best to assist the poor than about the need to avoid cooperation with the distribution of contraceptives. I’ve certainly heard people make that argument. For me, the interesting thing is how quickly the rhetorical positions switch. Politically liberal Catholics often argue that Church teaching, properly understood, allows latitude for dissent on sexuality; politically conservative Catholics argue that Church teaching allows latitude on economics. What this indicates, perhaps, is that Catholicism, like other traditional Christian confessions, represents a political third way: conservative on social issues, especially sexuality, but liberal on fiscal issues. Given contemporary American politics, that doesn’t seem a winning combination.
Commonweal on the Bishops’ Religious Freedom Statement
Over the past week, I’ve written about criticism from the Catholic right of the U.S. Conference of Catholic Bishops’ recent statement on religious freedom. Of course, there’s also been criticism from the Catholic left. This week, Commonweal has a negative editorial about the bishops’ statement. More in sorrow than in anger, Commonweal maintains that the statement veers into political partisanship. The bishops’ simplistic, one-sided language, the editorial complains, makes them sound more like Republican party operatives than pastors. Young people already are turning away from organized religion because it seems too political and conservative on social issues. Surely the bishops do not want to exacerbate that trend?
I wonder about this criticism. It’s true that the bishops’ statement highlights the Obama Administration’s contraceptives mandate. The mandate is the first on the list of threats to religious freedom the bishops identify, and surely served as the prime motivation for their statement. But the second item on the list is state anti-immigration laws, like the recent Alabama measure forbidding assistance to undocumented immigrants. In criticizing these laws, the bishops are hardly mouthing GOP talking points. Republican politicians often favor such measures, while the Obama Administration has filed a lawsuit challenging the Alabama law.
Even with respect to the contraceptives mandate, the bishops could be forgiven for saying that they didn’t start this fight. The bishops surely knew that objecting to the HHS mandate would have the effect of highlighting the Church’s position on contraception, and that this position is unpopular, particularly with Millennials. But what choice was there? It was the Obama Administration that issued the mandate during an election year. For that matter, it was the Obama Administration that argued this Term in Hosanna-Tabor that the religion clauses did not even apply to a church’s decision to fire a minister, a position that a unanimous Court characterized as “remarkable.” If it’s inappropriately partisan for religious organizations to respond when government takes steps like these, then religious organizations can never defend themselves in public debate. That may be a good thing from a spiritual point of view, but I don’t think it’s a result Commonweal would approve.
The HHS Mandate at Yale Law School
I was pleased to participate in a panel at Yale Law School yesterday sponsored by the Catholic Law Students’ Association and the St. Thomas More Chapel dealing with the HHS Mandate. I learned a great deal from my co-panelists, Matthew Boudway of Commonweal and Ashley McGuire of the Becket Fund. I thought I could make myself most useful by focusing on the federal legal framework within which the mandate is likely to be assessed, and my comments drew from many of the posts and discussions about it here at CLR Forum (with maybe a little more emphasis on the individual assessment exception to Smith than some might think warranted). And I was pleased at the number of interested folks who attended and the thoughtfulness of the questions.
Thanks to Christian Burset for putting the event together.
Outflanking the Bishops Conference on the Right
Last week, we noted a report from the U.S. Conference of Catholic Bishops on the importance of religious freedom in America, Our First, Most Cherished Liberty: A Statement on Religious Liberty. Most of the time, one hears about dissents from the Catholic Left, which disagrees with the bishops on issues like abortion and homosexuality. Last week, though, there was a reminder that dissenters also exist on the Catholic Right.
The Society for Saint Pius X is a traditionalist Catholic body, formed around opposition to Vatican II, with an ambiguous relationship to the Church. Pope John Paul II excommunicated the society’s founder, and the society lacks canonical status, but recently the Vatican and the SSPX have been negotiating a formalization of the society’s place within the Church. It’s noteworthy, therefore, that the SSPX has responded to Our First, Most Cherished Liberty with a statement of its own. The SSPX is not impressed. In fact, it views the bishops’ statement as another example of an Americanist compromise that dilutes the Catholic faith. “Liberty,” the society asserts, is a matter of freely following the will of God, as that will is expressed in the Catholic Church; it has nothing to do with the American notion — strongly influenced, the SSPX argues, by heretical Calvinist theology — of personal freedom. It is precisely this American idea of personal freedom, the society maintains, that has led to things like the HHS contraceptives mandate. The SSPX calls on the bishops to abandon the principles of the Church’s “opponents” and return to the Church’s own.
As Rick Garnett points out over at Mirror of Justice, this argument was settled at Vatican II itself, in the Church’s Declaration on Religious Freedom, Dignitatis Humanae. I don’t know how large a movement the SSPX represents within Catholicism, though I suspect it’s fairly small. Still, it’s interesting to think of the bishops as reflecting a middle-of-the-road position — within the Catholic Church, that is.
The USCCB Statement on Religious Freedom and Widespread Misunderstanding About the State of Free Exercise
Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Mark noted here. This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country. It’s one that I’ve encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it. The misunderstanding leads commentators, even law professors, to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty. I’ll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context. The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility. If I were a betting man in the mandate context, I’d put the odds somewhere around 60-40 for upholding the mandate.
Me Next Week
Just a little note on a couple of talks I am giving next week, in case CLR Forum readers have a chance to stop by and say hello.
On Wednesday, April 18, I’ll be participating in a panel at Yale Law School run by the Yale Catholic Law Students’ Association dealing with the HHS Mandate and Religious Liberty. The discussion begins at 6:00. More details about the event here.
On Friday, April 20, I’ll be at the University of St. Thomas under the auspices of the Terence J. Murphy Institute’s Hot Topics: Cool Talk program run by the gracious Lisa Schiltz. The Honorable Richard Sullivan of the U.S. District Court for the Southern District of New York will be joining me. I’ll be talking about the state of punishment theory and will discuss (a little bit) some of the insights of Sir James Fitzjames Stephen and Thomas Aquinas with respect to the justification of punishment (I hope to give a cool talk, but the odds are not so good). Details here.
Group Plans Nationwide Rallies for Religious Freedom Tomorrow
A group calling itself the “Stand Up Coalition” is planning a set of rallies across the nation tomorrow (March 23) to protest the HHS contraception mandate. The group’s website states that religious leaders and public figures will speak at the rallies, scheduled to start at noon local time, and predicts that thousands will participate. It’ll be interesting to see how this all plays out, and what sort of media attention the rallies get.