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HHS mandate court action--on steroids!
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It is harder and harder to keep up! Lawsuits keep being filed, or refiled, by religious nonprofit organizations and by companies of conviction. And court rulings keep being issued, in the great majority of cases handing a victory to the nonprofit or company in the form of a court order stopping application of the mandate to the plaintiffs while the courts consider definitive rulings. To keep up, visit--daily!--the scorecard and huge collection of resources maintained by the Becket Fund for Religious Liberty: HHS Mandate Information Central.
As of this moment, the numbers are:
* 91 cases and over 300 plaintiffs
* 46 for-profit cases and 45 nonprofit cases; 2 of the cases are class action
* 33 of the companies have so far won injunctions and only 6 have been denied injunctions
* 19 of the nonprofits have so far won injunctions and only 1 has been denied an injunction
* 2 of the for-profit cases have been accepted by the U.S. Supreme Court
The nuns and birth control. On the last day of 2013, Supreme Court Justice Sotomayor, acting for the Court, issued a temporary injunction stopping the application of the mandate to the Little Sisters of the Poor and several related organizations. The Supreme Court might extend the injunction or reverse it or even decide to take up this case right away itself.
The case is embarrassing for the administration, no matter what the Supreme Court decides. Just imagine: even though the administration last summer finalized an "accommodation" that it insists eliminates any genuine religious freedom problems a religious nonprofit could have, Justice Sotomayor was willing to call at least a temporary halt to the application of the mandate to these religious nonprofit organizations. And just imagine: the administration insists that this small group of nuns must participate in an insurance scheme that means that their insurer must offer to pay for birth control, sterilization, and abortifacients (emergency birth control, certain IUDs) for the group's employees!
This case involving the Little Sisters of the Poor should remind us of another group of nuns from the very early years of the founding of the United States. In 1727 the Ursuline Sisters arrived in New Orleans from France and started a convent and educational services. In 1803, because of the Louisiana Purchase, New Orleans came under the jurisdiction of the federal government, and the nuns, who knew how anti-religion the French revolutionaries were proving to be, were fearful that they would lose their religious freedom under this new US government. So they wrote to President Thomas Jefferson, asking for assurances that they would not be disturbed in their work by the government.
Jefferson wrote back to the nuns,"the principles of the constitution and the government of the United States are a sure guarantee [that your property] will be preserved to you sacred and inviolate." Your institution," he wrote, "will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority." And he said, "be assured [your religious institution] will meet all the protection which my office can give it."
Comforting words. Reflecting on them a few years ago, after President Obama took office, Father Larry Snyder of Catholic Charities USA, asked, "Do we need to dust this off and once again assure faith-based organizations that we will live up to Thomas Jefferson's protection?" Reassurance is needed. Will the Supreme Court offer it?
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How charitable is charitable giving?
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Before Christmas, Robert Reich, Secretary of Labor under President Bill Clinton and now a distinguished professor of public policy at the University of California, Berkeley, published an op-ed claiming that much that goes as "charitable" giving, and for which the donors receive a federal tax deduction, should be relabeled as something else.
A very large proportion of the tax deduction for charitable giving goes to the rich and superrich, he notes; many of the "charities" that get the big contributions actually are elite universities, art museums, operas, and symphonies, and not genuine poverty-alleviating charities; and all of that deduction money is lost to the federal government, unavailable for government social spending. In short, so much of the charitable giving that is rewarded with federal tax deductions goes not to help the genuinely needy but instead consists of the wealthy making "investments in the life-styles [they] already enjoy"--museums, concert halls, etc.--or of the wealthy making "investments in prestige"-a big donation in return for naming rights on a university building.
So "charities" and "charitable donations" ought to be redefined--limited to efforts to help the needy--and Congress ought to "consider limiting the charitable deduction to real charities."
Reich is on to something. Contributions from wealthy people to wealthy nonprofit organizations that mainly exist to provide services or entertainments that the wealthy could well pay for unaided-it is a stretch to think that the government ought to expend much effort to encourage such giving.
And yet there are multiple reasons not to jump on the Reich bandwagon to limit "charity" and thus the charitable deduction to direct aid to the poor. For example:
* Our society, including the poor, is better off when civil society is thriving, and one way the government assists civil society to thrive is to encourage giving in general.
* Not only specific anti-poverty efforts are helpful to those on the margins; for example, city policies that help keep a roof on and the heating operating in historic church buildings is for the good of all because of the many community-serving programs that such churches house and encourage (see Partners for Sacred Places).
* There's no particular reason to think that government understands exceptionally well how to alleviate poverty, and so no reason to think that more funding for government programs and less for non-governmental programs will always and inevitably be to the greater good of the needy.
* There's good reason to worry that our current policymakers, if they redefine a fundamental concept like "charity," will add secularizing qualifications friendly to faith-based organizations.
* In the long sweep of Western development, it is good to have a broad definition of "charity" that helps to insulate civil society from government over-regulation and over-steering.
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Promoting religious freedom = promoting religious privilege?
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The proliferating religious freedom fights these days are really just efforts by people and organizations of faith to impose their values on others. That was the basic message of a December 12 panel organized by the Center for American Progress, "Religious Liberty for Some or Religious Liberty for All?"
Panelists and the background issue paper argued that "religious liberty is not in conflict with marriage equality or with women's reproductive rights" so that efforts to create religious exemptions have no legitimacy. Apparently employees and customers have a legal right to be treated as they desire, but no business owner should be able to operate her business in accord with her religious convictions, because "religious liberty . . . includes the freedom from having the theological doctrines of your boss or those of business owners in your community being forced [sic] on you." Congress never intended the Religious Freedom Restoration Act to protect religious exercise by business owners or companies. Laws redefining marriage need not protect persons and organizations with a religiously grounded commitment to the historic definition of marriage, because legitimate religious freedom goes no further than assuring churches and clergy that they do not have to officiate at same-sex weddings, and this protection is already provided by the Constitution. And so on.
Religious freedom can, in fact, be deployed just to protect one's own interests, and that's a genuine problem. But this panel did not provide a deep or careful consideration of the real issues and challenges. Just another of the many seminars and conferences and panel discussions held constantly in Washington, DC. But note that John Podesta, the founder and promoter of the Center for American Progress, is headed to the White House as a special advisor to President Obama, tasked with giving the President more muscle to move his agenda forward despite the resistance of Congress. Are these the views on religious freedom that he'll promote in the administration?
Further reading:
Andrew Harrod, "Liberty for All or License for Some: How the Left Views Religious Freedom," Juicy Ecumenism, Dec. 21, 2013.
Joel Gehrke, "Liberals discuss the need to end �€˜Christian privilege�€™ in the name of religious freedom," Washington Examiner, Dec. 13, 2013.
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Should it be illegal for Catholic hospitals to be Catholic?
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It's a tragic case, where a pregnant Michigan woman apparently did not get the best medical care from a Catholic hospital in her crisis. But rather than go after the medical staff involved, who may have not provided the right information and treatment, the ACLU and the ACLU of Michigan are suing the US Conference of Catholic Bishops, claiming that the Church's "Ethical and Religious Directives for Catholic Health Care Services" wrongly prevent Catholic health professionals and institutions from performing abortions even when these are needed for the sake of the woman.
Why sue the bishops and not the doctors? Kevin Walsh at Mirror of Justice suggests that one reason is to get around the statute of limitations that applies in this instance. Another reason? "[T]o place a dark cloud over Catholic healthcare more generally."
It is that second possibility that has grabbed the attention, of course: those backward Catholics casually endanger women's lives by clinging to their obsolescent and anti-empirical views on abortion. The government should force Catholic doctors and hospitals to abandon their cramped theology and instead always render the best medical care possible.
The reality of law, ethics, faith, and medical practice is, of course, more complicated.
Here's what the USCCB said in response to the lawsuit:
"The [Ethical and Religious Directives] urge respectful and compassionate care for both mothers and their children, both during and after pregnancy. Regarding abortion, the ERDs restate the universal and consistent teaching of the Catholic Church on defending the life of the unborn child-a defense that, as Pope Francis recently reminded us, "is closely linked to the defense of each and every other human right" (Evangelii Gaudium, no. 213). This same commitment to the life of each human individual has motivated Catholics to establish the nation's largest network of nonprofit health care ministries. These ministries provide high-quality care to women and children, including those who lack health coverage and financial resources. The Church's rejection of abortion also mirrors the Hippocratic Oath that gave rise to the very idea of medicine as a profession, a calling with its own life-affirming moral code.
"A robust Catholic presence in health care helps build a society where medical providers show a fierce devotion to the life and health of each patient, including those most marginalized and in need. It witnesses against a utilitarian calculus about the relative value of different human lives. And it provides a haven for pregnant women and their unborn children regardless of their financial resources."
And here's what The American Prospect noted (in an article that grudgingly notes in its title, "Bishops May Not Be the Crooks This Time"):
"The very notion that hospitals can decide what kind of care they will provide based on their religious affiliation is ensconced in federal law; shortly after Roe v. Wade was handed down, Congress passed a broadly worded 'conscience clause' prohibiting public officials from requiring doctors or institutions who receive government funds to perform abortion or sterilization procedures if they object on moral grounds. Since then, virtually all of the states have enacted some kind of conscience clause legislation--Michigan allows both individual providers and institutions to refuse to provide abortion--and the federal government's protections on the religious right of refusal have only expanded.
"[T]he heart of the ACLU's complaint seems to be less about the directives themselves than the government's broad protections for conscientious refusal, which provides the legal justification for the guidelines in the first place. It's hard to argue that the USCCB shouldn't tell Catholic hospitals to follow Catholic teachings when U.S. law allows so much leeway for individual health care providers' religious beliefs, and explicitly counts institutions among those individuals."
Patients ought always to get the best medical care possible. But medical care is and must be a matter of ethics and not just techniques, and our society does not have a uniform view of ethics. However this particular medical tragedy should be understood and its recurrence prevented, nothing should be done to drive ethical considerations out of medicine--even if we cannot agree exactly on the ethics.
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Given the proliferating religious heterogeneity of our nation and the growing anti-religion sentiment, it is surely newsworthy when Pope Francis is named "person of the year" and ends up on the cover of a non-Catholic publication. Or rather two non-Catholic publications!
Question: which is the more significant placement?
* Pope Francis on the cover of Time magazine?
* Pope Francis on the cover of the gay rights magazine, The Advocate?
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Will Canada get a Christian law school?
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When Trinity Western University, an evangelical Christian institution in British Columbia, announced that it intended to start a Christian law school, there was an outcry from existing Canadian law schools and many in the Canadian legal profession. TWU, after all, not only teaches old-fashioned Christian morality but requires it of students, faculty, and staff. Its Christian curriculum and conduct standards were upheld in a landmark Canadian Supreme Court decision in 2001, but that hasn't kept much of polite Canada from treating the institution as a pariah.
And now it wants to inculcate lawyers--who are supposed to uphold justice--into its obscure and wrong beliefs!
And yet religious freedom is a Canadian constitutional principle (note that landmark TWU case) and the qualifications for starting a new law school do not include pleasing every other law school and law-school graduate. So, going against all the protests, the Federation of Law Societies of Canada approved the creation of a TWU law school, and the British Columbia government agreed. One day, a pronounced faith-based law school will join the many secular-minded Canadian law schools.
Read more here: John Sikkema, "The Opposition's Might Suggests the Cause is Right," The Cardus Daily, Dec. 20, 2013.
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* John Chandler, Faith-Based Policy: A Litmus Test for Understanding Contemporary America (Lexington Books, 2014).
My comment on the back cover: "[This book], rather than condemning or praising, is devoted to showing how this policy development illuminates the role of religion in American public life. This is an unusual and valuable addition to the small number of books on this important policy that now spans three administrations and both parties. His comments on the connection between faith and public affairs for President Obama are provocative."
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* From James K. A. Smith's introduction to "We Believe in Institutions," theme issue of Comment magazine (September 2013, Cardus):
"[I]f you're really passionate about fostering the common good, then you should resist anti-institutionalism. Because institutions are ways to love our neighbours. Institutions are durable, concrete structures that-when functioning well-cultivate all of creation's potential toward what God desires: shalom, peace, goodness, justice, flourishing, delight. Institutions are the way we get a handle on concrete realities and address different aspects of creaturely existence. Institutions will sometimes be scaffolds to support the weak; sometimes they function as fences to protect the vulnerable; in other cases, institutions are the springboards that enable us to pursue new innovation. Even though they can become corrupt and stand in need of reform, institutions themselves are not the enemy. Indeed, injustice is often bound up with the erosion of societal institutions." -- * Kenneth Grasso, "American Kulturkampf: The HHS Mandate and the Crisis of American Religious Pluralism," Modern Age, Oct. 21, 2013. (Internal quotes are from John Courtney Murray, We Hold These Truths: Catholic Reflections on the American Proposition, 1960). "Confronted with the religious pluralism that was America's 'native condition' and the consequent 'necessity of creating an environment, protected by law, in which men of differing religious faiths might live together in peace' and embracing the ideal of limited, secular government, the American people chose to limit sharply the powers of the state in religious matters, to deny it the ability to use law and policy to reduce the religious pluralism of American society to a uniformity. "The effect of the sharp limitations America placed on the powers of government was to create a public order in which the institutions of civil society, rather than the state, became the center of social gravityand in which religious groups were afforded the legal space they needed to live out their distinctive commitments. Limited government thus made possible the creation of a public order that could command 'the full and free, unreserved and unembarrassed' allegiance of the diverse faith communities composing our religiously divided society."
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