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
