Marty,
If the Catholic Church's view is really the same as Patrick Deenen's-if the Catholic Church's real objection is that HHS moves us to a Leviathan-like state and they have religious objections to that-then I agree its First Amendment claim fails. Then this really does become a case like Lyng or Bowen. The Catholic Church can object if they are coerced by the government in doing things against their religious will, but they have no First Amendment claim to control the government's behavior. A problem is going to be that there are a lot of people in the Catholic Church. Some will have a religious objection specifically to the government-imposed role for the Catholic Church, some will just have a religious objection to the whole act (maybe like Patrick Deenen), and some will have no religious objection at all. I guess everything depends on who the plaintiff is. And in the case of an organizational plaintiff, it depends on the people vested with authority for the organization. You seem to equate (1) religious organizations where "the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious norms" and (2) religious organizations "that qualif[y] for and exercis[e] the title VII exemption allowing preferences for co-religionists." I think I agree that (1) makes sense in deciding on the breadth of any religious exception. My question is why (1) and (2) are the same. Why can't there be organizations that have an important religious mission, but don't hire exclusively in the faith? I think a lot of religious social-justice organizations work that way. And church schools. This was a big deal in Hosanna-Tabor. The fact that the church school hired non-Lutherans was evidence to the Sixth Circuit that the church school wasn't serious about its religious mission. That seems to me (and it seemed to the Court) to be a mistake. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 2:28 PM To: Law & Religion issues for Law Academics Subject: HHS Rule: What is at Stake? Thanks, Chris. As to your discussion regarding what might be truly bothering at least some critics of the HHS within the Church, over at Mirror of Justice Rick G. links to this new post by one of our esteemed Conference participants, Patrick Deenen, whose views on this certainly differ considerably from mine (and from many of his co-panelists'): http://www.firstthings.com/onthesquare/2012/10/president-obamarsquos-campa ign-for-leviathan. To Patrick's credit, at our conference he acknowledged during his panel's discussion (hope I'm characterizing this fairly--I need to review the video myself!) that the issue from the Church's perspective is not so much (or at least not principally) impermissible forced cooperation with evil, but something much more fundamental about the role of the state. His new essay gives a flavor of what he sees as one of the real concerns for at least certain of the objectors to the HHS Rule. Patrick writes that with "the observation during the Democratic National Convention that 'government is the only thing we all belong to'," and "the actual underlying theme [of the Convention] that the State is needed to ensure our individuated liberty," "the Obama administration thus implicitly and effectively endorsed the Hobbesian liberal ontology that there ought exist only individuals and the state-all other competitors are to be regarded as oppressors, and require an expansive and empowered government for individual liberation." Now, I happen to think that this leap is, to put it politely, not intuitively obvious and more than a bit hyberbolic. Does anyone seriously think that statements or themes at a convention that "the government is the only thing we all belong to" and "the state is needed to ensure our individuated liberty" reveal that the Obama Administration endorses elimination of all other social institutions ("there ought to exist only individuals and the state"), every one of which is "to be regarded as oppressors"? But more to the point, Patrick argues that the HHS rule is a prime example of the "Leviathan" state dangerously intruding into the internal operations of voluntary, constitutive social organizations to which persons once owed their primary allegiance --- including the family, the Church, and private guilds. The problem (well, one problem) with this argument is that the HHS rule will not apply to virtually any organization of the type that Patrick describes -- in particular, to any nonprofit organization that qualifies for and exercises the title VII exemption allowing preferences for co-religionists. In those organizations, the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious norms. For that reason, HHS does not apply its Rule to those organizations. (I'm putting to one side here the fact that there may be -- though I doubt it -- a few organizations that hire only from within the Church but that would not qualify for either of the HHS exemptions. Because that's a hypothetical situation unlikely to be encountered, I think it fair to reserve it here.) The employees being protected by HHS here are not those who have voluntarily joined such an organization "constituitive" of a cohesive community challenging the orthodoxies of the state. Instead, they are, for the most part, non-Catholic employees who have been hired by Catholic employers to process refractory and ceramic materials (O'Brien), or to serve soup, or to sort the mail, or to take dictation, or to keep the accounting books, etc. These employees do not promise, and are not expected, to follow Catholic precepts in their private lives. And, perhaps more to the point, well before the HHS Rule, the dreaded Leviathan state had already imposed countless regulations on the employer for the purpose of protecting those employees (wage and hour regs, antidiscrimnation norms, OSHA, etc., etc.) -- regulations that are not typically applied to the sorts of theoretical pre-state organizations to which Patrick refers. Perhaps most importantly for purposes of this list, if this is really what's driving the objection to the HHS Rule, then, whatever one thinks of its merits, is it really the sort of objection that the state should accommodate in the name of religious liberty? On Wed, Oct 3, 2012 at 12:41 PM, Christopher Lund <l...@wayne.edu> wrote: Marty, obviously worthy questions. No answers, just some thoughts. 1. I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is "burden," and if we interpret it broadly, then there's a risk of a taffy pull-every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that "strong" claims get treated much worse. I don't have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that-apart from prisons-the weakest claims aren't brought, or don't find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn't feel this way, but I do. And I bet judges do too. 2. (I agree about the difficulties of Gillette.) One thing: "The claimant's say-so of a religious burden." A plaintiff's subjective views of a burden are irrelevant-that's Lyng and Bowen. But plaintiffs' subjective views of their own religion are controlling-that's Thomas, and Lee, and others. There's a difference there, and the gap creates a real check. Yes, plaintiffs can "create" a burden by willing to plead whatever religious beliefs necessary to get them there, but I'm not convinced they would do that. And I think sincerity is a legitimate attack there. 3. I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don't think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether they should be required to provide contraception to their employees, with (2) whether contraception should be provided at all (whether by other employers or the government). The first is a religious liberty claim, where I am sympathetic to the Church; the second is a public policy claim, where I am not. That the Church has sometimes mixed the two together opens the door to a doubt about sincerity: Maybe the Catholic Church just doesn't like contraception generally, and this is just another tactic to minimize its spread. But I think a plausible reading of the Church's position is that while they dislike contraception across-the-board, there are special problems with them being forced to provide it. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 11:17 AM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Chris: You and Marc raise absolutely valid points about doctrine during the Sherbert/Yoder era: The argument I'm suggesting (I'm not advocating it yet -- merely thinking it through) is in at least some tension with the sheet-metal/turrets portion of Thomas, and perhaps the burden discussion in Lee (I can't recall offhand what the Amish theory was about why the Social Security taxes violated their religion, but I assume it was something akin to the "cooperation with evil" theory being floated here; although as Chip suggests, it also involved some aspect of double-payment). So, simply in terms of what the right answer is or ought to be under RFRA, the government will obviously have to contend with those cases, either by suggesting (as someone here did) that perhaps RFRA did not incorporate their burden analysis wholesale (I'm dubious, but haven't thought it through), or that this case is distinguishable. But I'm not simply asking what the "right" answer is under RFRA. I'm trying to address at least three other questions raised by these claims: 1. Was Burger right on the turrets/sheet-metal point? Should the courts actually treat all religious claims of substantial burden uncritically, without even asking whether and to what extent the claimant's own conduct calls into question whether the burden is in fact substantial from the claimant's own religious perspective? If the courts do not differentiate at all between the plausibility and strength of such claims, and treat all alleged substantial burdens alike, is that a good thing for religious liberty? After all, it means that if the government were to voluntarily give exemptions, or be compelled by the FEC/RFRA to do so, it would have to cover a much, much wider class of claimants, with an accordingly much greater cost on the government interest side of the ledge . . . which as we all know means that many fewer exemptions will be afforded, in which case the claimant with the "strong" objection is harmed by being lumped in with the claimants with idiosyncratic or more attenuated objections. (As we all know, the courts have often avoided this problem by rejecting sincerity claims -- something that rightly troubles many of us.) 2. Regardless of what a court should do under RFRA, should a legislature or administrative agency be sympathetic to such claims, and voluntarily accommodate all such claims merely upon a claimant's say so of religious burden, knowing that to do so would expand the class of exempted persons dramatically? (Cf. The decision of Congress/the Court to grant conscientious exemption status only to those persons who have objections to all wars, and not to those who object to participating in unjust wars.) 3. Perhaps most importantly, but of course most sensitively, should Catholic institutions be asserting such claims of impermissible cooperation with evil when such claims appear -- not only to outside observers such as I, but to virtually every serious Catholic thinker I've encountered -- to be deeply inconsistent with the institutions' own conduct in analogous cases and with common understandings of the moral doctrine? At the very least, isn't there some value in asking such institutions to articulate why this particular use of funds is immoral and other, seemingly analogous uses are not, if only to encourage the institution to be more critical and candid about how the HHS Rule actually affects Catholic institutions. (Please note that I am not here suggesting that the Rule has no effect on such institutions, or that they do not sincerely find it odious --to the contrary. I am merely pressing upon the common and powerful claim that "it puts us to the untenable choice of complying with the law or violating a religious injunction.")
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