A noteworthy cert. grant, vacate, and remand (“GVR”) by the Supreme Court yesterday. Notre Dame’s challenge is to the “accommodation” accorded by the Obama Administration to nonprofit organizations with religious objections to the contraception mandate. To say that the Seventh Circuit’s panel decision (authored by Judge Posner, joined by Judge Hamilton, and with a dissent by Judge Flaum) against Notre Dame was deeply skeptical of the claimant’s objection would understate matters. The fact that the Supreme Court has vacated that decision and remanded the case for reconsideration in light of the Court’s Hobby Lobby decision is interesting.
On Monday, I participated in a panel discussion, “The Evolution and Implications of the Religious Freedom Restoration Act,” at the Federal Bar Council’s annual Winter Bench & Bar Conference. (Honor compels me to reveal that the conference took place at the Casa de Campo resort in the Dominican Republic, where the February weather is much nicer than in Queens. But I returned to Queens right after my panel to teach my classes. The sacrifices scholars make). Founded in 1932, the Council is an organization of lawyers who practice in federal courts within the Second Circuit. The winter conference attracts not only lawyers, but also judges–Supreme Court Justice Samuel Alito is on the program this year–and discussions are substantive and enlightening.
My panel concerned a topic we’ve covered often here at the Forum, namely, religious accommodations under RFRA. I gave a twenty-minute overview of the topic, addressing the history of religious accommodations in American law, RFRA itself, the Court’s decisions last term in Hobby Lobby and Wheaton College, and their immediate aftermath. Moderator Judge Brian Cogan (EDNY) then led the discussion, which included a mock argument on a hypothetical case involving the federal Family and Medical Leave Act–attorneys Steven Edwards (Hogan Lovells) and Steven Hyman (McLaughlin & Stern) took opposite sides–and interventions by Noel Francisco (Jones Day) and David Schaefer (Brenner Saltzman & Wallman). We wrapped up with audience Q&A.
I wasn’t the only member of the Center family to participate in the conference. Board member Mary Kay Vyskocil (Simpson Thacher) worked hard to coordinate the RFRA panel, though she unfortunately could not attend the conference, and Board member Judge Richard Sullivan (SDNY) will appear on a panel later this week.
Thanks to the Council for inviting me and to my fellow panelists for an engaging discussion!
Measles is back. In recent weeks, an outbreak that originated in Southern California has spread across the nation (above). Public health officials seem confident the outbreak is explained, in large part, by the fact that significant numbers of parents no longer have their children vaccinated. These parents rely on exemptions that state laws, like California’s, provide for parents who object to mandatory vaccination programs. Perhaps surprisingly, the resistance is disproportionately high in wealthier, better educated, bluer neighborhoods, the sort of communities that pride themselves on their enlightened, progressive outlook.
The outbreak has obvious, unsettling public health implications. We are witnessing the recurrence of a serious, highly contagious disease we thought we had eradicated. In this post, though, I’d like to discuss some important cultural and legal implications. Culturally, the outbreak suggests the growing influence of the Nones—those Americans, maybe as many as 20% of us, without a formal religious affiliation. As I’ll explain, many of the parents who object to vaccination reflect the spirituality of the Nones. Legally, the outbreak seems likely to provide ammunition for opponents of last term’s decision in Hobby Lobby, the Contraception Mandate case. As I’ll explain, though, Hobby Lobby wouldn’t allow parents to claim religious exemptions in this context.
Let’s start with the cultural implications. To understand why the measles outbreak suggests the growing influence of the Nones, consider the reasons parents give for refusing to vaccinate their children. Some parents, it’s true, worry about the threat of toxins and an alleged link with autism. But the link with autism has been debunked; scientifically, there’s nothing to it. Some parents belong to religions that oppose vaccination. But the number of religions that forbid or even discourage vaccination is actually quite small. Conventional religious teachings cannot explain the widespread resistance we’re seeing, particularly in those blue, progressive neighborhoods.
Based on media accounts, much of the resistance comes from parents who object to vaccination, not because of science or conventional religion, but “personal belief.” Indeed, California law speaks in terms of a “personal belief exemption.” Many of the objectors have an intuitive conviction that vaccination is not right, natural, or wholesome. They associate it with capitalism and anti-environmentalism, which they see as morally deficient. Immunization makes these parents sincerely uncomfortable on a gut level. One told the New York Times, simply, “Vaccines don’t feel right for me and my family.”
Now, it’s impossible to hear these objections without thinking of the Nones. The Nones are a diverse group with varied commitments and philosophies. But sociologists have identified a common characteristic. Nones reject organized religion, not faith. In fact, they tend to be quite comfortable with spirituality, as long as it is personal and authentic: they are the “Spiritual but Not Religious.” So when a parent says vaccination seems wrong to her on a visceral level, and that she therefore refuses to allow her children to go through the procedure, she is reflecting the spirituality of the Nones. Of course, I don’t claim that all Nones reject vaccination, or even that all the parents who object to vaccination are Nones. But the Nones’ worldview pretty clearly provides the anti-vaccination movement with much of its considerable force.
Next, the legal implications. It seems to me very likely that opponents will use the outbreak to attack the Court’s decision last term in Hobby Lobby, the Contraception Mandate case. In fact, in her Hobby Lobby dissent, Justice Ginsburg argued that that, under the Court’s reading of RFRA, employers with religious objections could refuse to cover vaccinations for employees. This argument is a bit ironic, since, as I say, most religions don’t object to vaccinations. But some religions do object, and anyway, under Supreme Court precedent, the personal, anti-vaccination beliefs of Nones could be treated, for legal purposes, like traditional religious convictions. So Justice Ginsburg’s argument has a surface plausibility.
The Hobby Lobby Court expressly declined to address the implications of its holding for vaccination requirements. But Justice Ginsburg’s argument is misleading. Under RFRA, the government must offer an accommodation where a less restrictive alternative exists, that is, one that would allow the government to fulfill its compelling interest without substantially burdening the claimant’s exercise of religion. In Hobby Lobby, an alternative did exist. The government could have allowed the employer to opt out of coverage and have the plan administrator itself pay for the contraception. A similar accommodation could be worked out for vaccinations. If an employer didn’t want to pay, the plan administrator could be required to do so.
But here’s the important point: the vaccinations would take place. Hobby Lobby would not allow parents with religious objections to refuse to have their kids vaccinated at all. This is because there is no less-restrictive alternative to a mandatory vaccination protocol. For vaccination to work in preventing the spread of serious disease –surely a compelling government interest—more than 90% of a population must be vaccinated. (Scientists refer to this as the percentage necessary to create “herd immunity”). If the government allowed exemptions for people with religious objections, the percentage of vaccinated children could quickly fall below this number, endangering the whole population. In one California location, for example, the Times reports that exemptions have allowed 40% of schoolchildren to skip their measles vaccination.
Now, there is a complication. All states allow parents to claim exemptions from mandatory vaccination requirements for medical reasons. In some very rare cases, vaccination can endanger the health of a child, and in those circumstances, parents can decline to have their child vaccinated. Well, you might ask, doesn’t the possibility of medical exemptions suggest that the government doesn’t have a compelling interest in vaccinating absolutely everybody? And doesn’t that mean the government must also allow religious exemptions?
Maybe—some lower court caselaw does suggest that outcome. But I doubt it. No medical protocol is ever completely categorical; we don’t insist that doctors carry out a course of treatment even if it’s not medically indicated. It’s hard to imagine the Supreme Court would hold that allowing any medical exemption at all would necessarily require an exemption for religious reasons. It wouldn’t make sense.
Anyway, an outbreak of the sort we’re experiencing now is not an inevitable consequence of Hobby Lobby. It’s worth keeping that in mind in the weeks ahead.
Our friend, Paul Horwitz, has just published his essay, The Hobby Lobby Moment, in the latest issue of the Harvard Law Review. The piece is well worth reading and reflecting on. It is written in Paul’s characteristically thoughtful and insightful manner, and it makes many points about the social and cultural context of the case that cut much deeper than most of the commentary on what has been, to put it mildly, a controversial decision. Even on those issues where I see things a little differently than Paul (for example, I am much more skeptical than is Paul about the degree to which there was ever consensus about the good of religious free exercise in the legal academy, and therefore about whether there is any substantial fragmentation of that consensus today), the points he makes are interesting, original, and thought-provoking.
In January, Rowman & Littlefield will release “The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought ” edited by Stephen M. Krason (Franciscan University of Steubenville). The publisher’s description follows:
In “The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought,” contributors consider a series of significant challenges to the freedom of religious conscience and expression in the United States today. Such challenges include the mandate from the U.S. Department of Health and Human Services concerning contraceptive, sterilization, and abortifacient coverage in health insurance plans; the question of health-care institutions requiring medical personnel to participate in morally objectionable procedures contrary to their religious beliefs; legal liability for individuals and businesses refusing on religious grounds to provide services for same-sex marriages; the prohibition on students from engaging in religious expression in public schools; the use of zoning laws to block Bible studies in private homes; and a variety of other issues that have surfaced in recent years with respect to religious freedom. While some argues that religious liberty extends no further than the freedom to worship, contributors suggest otherwise, noting that the exercise of religious liberty is greater than a highly restrictive definition of the notion of worship.
The Crisis of Religious Liberty comprises eight chapters and an afterword that explore the nature and basis of religious freedom in terms of Catholic social thought. They cover such topics as the Catholic Church’s teachings from the Vatican II’s Dignatis Humanae (Declaration on Religious Liberty), the decline of a historic rapprochement among different religious perspectives in the United States in the face of an increasingly aggressive secularism, perspectives on religious liberty from the founding of America, and how the religious liberty situation in the U.S. compares with the rest of the world.
In The American Interest this week, sociologist Peter Berger has a provocative essay on the controversy over the City of Houston’s demand for sermons several pastors have delivered on the topics of homosexuality and gender identity. Berger says the roots of the controversy lie in the Obama Administration’s disregard for religion. He makes a powerful point, but I wonder whether he overstates things.
The City of Houston’s demand came in the form of subpoenas in a lawsuit over a petition to repeal a city anti-discrimination ordinance. As I explained in an earlier post, the city’s demand was outrageous, even given the freewheeling standards of American litigation, and the city has in fact narrowed its request. Some smart observers think this “narrowing” is just a publicity stunt. In my opinion, the new subpoenas, which ask only for communications that relate to the petition and ordinance themselves, stand a better chance of surviving. We’ll see how the court rules.
But leave aside that narrow, procedural matter for now. Here’s a more important question. Why did the city issue the offensive subpoenas in the first place? America has a long tradition of respecting religion, and the idea that government would demand to know what pastors were saying in their own churches should have set off all kinds of alarms. We don’t do that sort of thing in our country.
Berger says the episode reflects America’s decreasing regard for religion and religious believers. And he lays the blame largely at the door of the Obama Administration:
This episode in the heart of the Bible Belt can be placed, first, in the national context of the Obama presidency, and then in a broad international context and its odd linkage of homosexuality and religious freedom. I’m not sure whether President Obama still has a “bully pulpit”; at this moment even close political allies of his don’t want to listen to his sermons, if they don’t flee from the congregation altogether. All the same, every presidency creates an institutional culture, which trickles down all the way to city halls in the provinces. This administration has shown itself remarkably tone-deaf regarding religion. This was sharply illuminated at the launching of Obamacare, when the administration was actually surprised to discover that Catholics (strange to say!) actually care about contraception and abortion. Eric Holder’s Department of Justice has repeatedly demonstrated that it cares less about religious freedom as against its version of civil rights. Perhaps one reason for the widespread failure to perceive this attitude toward the First Amendment is that Barack Obama is seen through the lens of race–“the first black president”. I think a better vision comes through the lens of class–“the first New Class president”–put differently, the first president, at least since Woodrow Wilson, whose view of the world has been shaped by the culture of elite academia. This is evident across the spectrum of policy issues, but notably so on issues involving gender and religion.
Now, there’s much in what Berger says. The Obama Administration has shown little enthusiasm for religious freedom. True, the Administration intervened recently to protect a prison inmate’s right to wear a 1/4-inch beard for religious reasons. But in the two major religious freedom cases of its tenure, Hobby Lobby and Hosanna-Tabor, the Administration created obstacles for religious freedom in needlessly inflammatory ways. Continue reading
Next month, Palgrave Macmillan will release “Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution” by David H. Gans (Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center, USA) and Ilya Shapiro (Senior Fellow, Cato Institute). The publisher’s description follows:
This engaging book provides a comprehensive analysis of the issues in Burwell v. Hobby Lobby, the blockbuster legal challenge to the Affordable Care Act regulation that requires employer-sponsored health plans to provide contraceptive coverage. Through a series of debates between advocates on both sides of the case, the book tackles questions such as: whether for-profit corporations can assert religious-exercise claims under the First Amendment or federal law, whether businesses with religious objections to certain contraceptives should be exempt from coverage requirements, and what the consequences are of the Supreme Court’s June 2014 ruling in favor of Hobby Lobby. This case will be discussed for years to come, and the spirited debate between the authors provides fascinating and informative food for thought to scholars, students, and the public as they grapple with fundamental questions of corporate personhood, religious liberty, and health care policy.
The Huffington Post reports that The Satanic Temple believes that its religious rights are infringed when its members receive anti-abortion pamphlets and information in those states that require informed consent before proceeding with an abortion. The Satanists seem to believe that they can use the Hobby Lobby decision to press their claim. You can see some of the other beliefs of the Satanists at the link.
But the informed-consent laws that the Satanists object to are state laws. This is the document that the Huffington Post pastes onto its story purporting to evidence the claim. Although it does tend to be forgotten and get lost in the nonsense (even by some Supreme Court Justices who took part in the decision), it’s important to remember that Hobby Lobby was a decision under the Religious Freedom Restoration Act. RFRA applies only against the federal government. Perhaps there are some federal abortion informed-consent laws that the Satanists object to as well (though the Huffington Post did not list any of those). At any rate, RFRA won’t be of much help to the Satanists if they are objecting to state informed-consent laws.
That’s of course all before getting to the test that RFRA actually sets out, even if RFRA applied (which it doesn’t). The Satanists would need to show that the mere reception of information about abortion intended to render their consent to an abortion informed imposed a substantial burden on their religious exercise. That seems rather different to me than the threats of financial penalty imposed by the contraceptives mandate on Hobby Lobby. The Satanists would also need to counter the government’s compelling interest in ensuring that a person’s consent was indeed informed before proceeding with an abortion, as well as satisfy the least restrictive means analysis. That would be a challenging standard to meet as well.
This CNN story reports that the White House has announced “revisions” to the contraceptives mandates that was the subject of both the Hobby Lobby and more particularly the Wheaton College litigation. But after reading the body of the story, it may be more precise to say that the White House has announced that it plans to revise the mandate. Here’s a quote from an Administration official: “In light of the Supreme Court order regarding Wheaton College,” said the official, “the Departments intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing.” Though the Wheaton College order was not a final disposition on the merits but only a preliminary injunction, the announcement suggests that the Administration believes that it may lose on the merits as well.
The story reports that the revised rule will be issued “within the month.”
Really, I mean it.
It’s tough to keep pace with the monumental, colossal stupidity these days about this case. It would be a full-time job to respond to all of the garbage, and who’s got the energy or inclination for that? This poor man aligns the Hobby Lobby Supreme Court majority with ISIS and Boko Haram. The unifying thread–both are anti-American:
The most horrific of the religion-inspired zealots may be Boko Haram in Nigeria. As is well known thanks to a feel-good and largely useless Twitter campaign, 250 girls were kidnapped by these gangsters for the crime of attending school. Boko Haram’s God tells them to sell the girls into slavery….
Violent Buddhist mobs (yes, it sounds oxymoronic) are responsible for a spate of recent attacks against Muslims in Myanmar and Sri Lanka, leaving more than 200 dead and close to 150,000 homeless. The clashes prompted the Dalai Lama to make an urgent appeal to end the bloodshed. “Buddha preaches love and compassion,” he said.
The problem is that people of faith often become fanatics of faith. Reason and force are useless against aspiring martyrs.
In the United States, God is on the currency. By brilliant design, though, he is not mentioned in the Constitution. The founders were explicit: This country would never formally align God with one political party, or allow someone to use religion to ignore civil laws. At least that was the intent. In this summer of the violent God, five justices on the Supreme Court seem to feel otherwise.
“The founders” certainly were not “explicit” in the Constitution about the points that Egan makes. “Explicit” means “clearly stated.” Where are the points Egan makes about the Constitution clearly stated? What “intent” does he refer to? There is lots of evidence that at least some of “the founders” actually would recognize that religion sometimes can provide grounds for viable and cognizable objections to civil laws. Nothing “explicit” in the Constitution absolutely prohibits such a recognition. And I daresay that “the founders” would rise up in unison to shout down the abject fool who lumped together organizations that kidnap, torture, and kill people with a court of law that, agree or disagree with its decision, does its best to interpret the law. There are many times when I disagree with the Supreme Court’s decisions as to fundamental questions. But I recognize that those are legal disagreements. Cannot Egan do the same? In what way did “five members of the Supreme Court” align themselves with a “violent God” by ruling as they did, rather than simply issue a decision with which Egan disagrees?
Where is there to go with such talk? What is there left to say?