Category Archives: Mark L. Movsesian

Annicchino on the EU and Religious Freedom

Pasquale Annicchino (European University Institute) has posted an new paper on SSRN, Is the European Union Going Deep on Democracy and Religious Freedom. Here’s the abstract:

In recent years the European Union has begun to explicitly affirm a foreign policy role for freedom of religion or belief (FoRB). The initial reaction to this trend among many scholars and policy analysts has largely been that of caution—if not outright skepticism—regarding the practical import of the changes. However there are signs of continuing momentum. While the EU’s record thus far does not yet reflect a fully comprehensive strategy for integrating FoRB into its broader agenda for promoting deep democracy, it has been able to enlarge the role of FoRB in its external action on a step-by-step basis.

What Explains the Reaction to Hobby Lobby?

I confess I’ve been surprised at the vitriol last month’s decision in Hobby Lobby has drawn from the Left. To me, the case seems a narrow victory in favor of religious freedom. But critics, including some on the Court, see the case as a major defeat for freedom and equality. In their view, the Court has allowed religious zealots–for, in truth, who else would object to the contraceptives at issue?–to impose their beliefs and affect the life choices of their women employees. Once again, the forces of regression have attempted to coerce women. And the Court has allowed it.

This is perplexing. It’s worth repeating: Hobby Lobby objected to covering only four contraceptives out of the 20 HHS mandated. It did not threaten to fire or discipline women employees who used one of the contraceptives; it objected only to paying for the contraceptives itself. Moreover, the Hobby Lobby Court endorsed an accommodation that allows employees who wish to obtain the contraceptives to do so at no cost. In short, no Hobby Lobby employee who wishes to use one of the four contraceptives will be prevented from doing so.

So why all the vitriol? Why all the talk of coercion? In a very insightful post at Bloomberg View, blogger Megan McArdle (left) explains the situation. In fact, it’s one of the better posts I’ve seen on the controversy.

McArdle says three factors are involved. First, the Left cannot understand why religion should merit this sort of deference. Although “the religious right views religion as a fundamental, and indeed essential, part of the human experience,” she writes, “the secular left views it as something more like a hobby.” For the Left, therefore, “it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts.” In fact, although McArdle doesn’t put it this way, the Court has allowed religion to interfere with sex, which really is “a fundamental, and indeed essential, part of the human experience.” It just seems crazy.

Second, about coercion. From the classical liberal perspective, in which rights are principally negative rights, the Hobby Lobby case does not involve coercion. As McArdle writes, “How is not buying you something equivalent to ‘imposing’ on you”? But if we consider that our society confers many positive rights as well as negative ones, the situation becomes much more complicated:

“Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.

Third, she writes, the classically liberal distinction between the state and civil society has broken down. Classical liberalism accepted a large public space that did not belong to the government. Now, however,

For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals — for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.

In this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere — and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.

McArdle agrees with the Hobby Lobby decision, by the way (as do I), which makes her willingness to see things from the opposite perspective all the more welcome. Read the whole thing.

Mihai, “Orthodox Canon Law Reference Book”

In May, Holy Cross Orthodox Press released Orthodox Canon Law Reference Book, by Vasile Mihai. The publisher’s description follows:

In one manageable volume, Orthodox Canon Law Reference Book makes the canons of the Orthodox Church, which were written and complied over centuries, searchable and accessible to current inquirers. In his preface, Fr. Mihai explains the place of canons in relation to revealed faith and the personal experience of God s presence. A most valuable introduction distinguishes between Canon Law and secular law, and not only discusses how to interpret canons, but also offers several examples demonstrating the interpretive process of analysis and application. Alphabetized topics organize the pertinent canons, which are then listed chronologically under each topic. Numerous footnotes offer explanations for terms and understandings from historical contexts. Three appendices discuss the meaning of the word canon, the priest-penitent relationship, and Byzantine legislation on homosexuality.

Like Us? Please Tell the ABA

The American Bar Association is compiling its annual list of the 100 best legal blogs–that’s “blawgs,” for you uninitiated–and is soliciting reader suggestions. We were honored to make the list this past year and would be honored for a repeat. So, if you like the work we’re doing here at the Center for Law and Religion Forum–the Commentaries, Podcasts, and Scholarship Roundups, the Around the Web feature, the Conversations, Debates, and Guest Posts from law professors and other experts–please nominate us. The nomination form is here and the deadline is August 8. Thanks!

“At the Limits of the Secular” (William J. Barbieri, Jr., ed.)

This week, Eerdmans releases At the Limits of the Secular: Reflections on Faith and Public Life, edited by William A. Barbieri, Jr. The publisher’s description follows:

This volume presents an integrated collection of constructive essays by eminent Catholic scholars addressing the new challenges and opportunities facing religious believers under shifting conditions of secularity and “post-secularity.”

Using an innovative “keywords” approach, At the Limits of the Secular is an interdisciplinary effort to think through the implications of secular consciousness for the role of religion in public affairs. The book responds in some ways to Charles Taylor’s magnum opus, A Secular Age, although it also stands on its own. It features an original essay by David Tracy — the most prominent American Catholic theologian writing today — and groundbreaking contributions by influential younger theologians such as Peter Casarella, William Cavanaugh, and Vincent Miller.

Alianak, “The Transition Towards Revolution and Reform”

This month, Oxford University Press releases The Transition Towards Revolution and Reform: The Arab Spring Realised?, by Sonia L. Alianak (University of Texas). The publisher’s description follows:

The Arab Spring created a transition toward democracy for the peoples of Tunisia, Egypt, Morocco and Jordan, who initially elected moderate Islamist parties to lead them out of economic deprivation and corruption. This study looks at the relative success of the move to democracy in these four Middle Eastern countries, comparing the secular leaders of Tunisia and Egypt and their desire for revolution with the monarchs of Morocco and Jordan and their priority of reform. In contrast with the monarchs, the secular leaders avoided resort to the palliative of religion to ensure the stability of their rule and were, as a result, unable to survive.

Conference: “Common Sense in the West” (Long Island, July 17-20)

The Adler-Aquinas Institute will host a conference, “Common Sense in the West,” in Huntington, NY, on July 17-20. Here’s a description from the Blog of the Courtier website:

An upcoming conference co-sponsored by the Adler-Aquinas Institute, Renewing the West by Renewing Common Sense, will give those of you with a philosophical bent the chance to meet with others of like mind, in order to consider some of the issues facing Western society today, as old bonds fracture and need repair or replacement.  How does the church receive funding from the state going forward, if said funding increasingly has moral and ethically problematic strings attached to it? How do we see the question of theological anthropology now, in the wake of the new, trendy version of atheism? What can we learn from the ideas and leadership styles of figures like Ronald Reagan and St. John Paul II?  What lessons about tyranny from Socrates are still applicable in the present socio-political climate?

These are some of the topics to be considered the weekend of July 17-20 at the inaugural international conference, which will be held at the beautiful Seminary of the Immaculate Conception on Long Island  Registration is still available, and includes accommodation, meals, and receptions, but spaces are becoming limited.  You can find out how to register by visiting the Adler-Aquinas Institute site.

European Court Decides Church Autonomy Case; Russian Judge Calls Clerical Celibacy a Human Rights Violation

I’m a little late getting to this, but I wanted to say a few words about Fernández Martínez v. Spain, the church autonomy case the European Court of Human Rights decided last month. By a vote of 9-8, the court held that Spain did not violate the European Convention on Human Rights when it declined to renew the contract of a public school teacher who had been offering classes in Catholicism.

Because of the close vote, some commentators have expressed worries about the case’s implication for church autonomy in Europe. I think those worries are overstated. The closeness of the vote turns on the peculiarities of the Spanish public school system, in which state employees offer religious instruction. The dissent of the Russian judge does cause concern, however. Judge Dedov’s opinion suggests a bias against Catholicism unlike anything I can remember in a judicial opinion.

In Spain, public schools offer religious instruction at state expense. The teachers are state employees. But the Spanish government has entered into agreements with four religious communities–Catholic, Evangelical, Jewish, and Muslim–which provide that schools will select instructors in those religions from candidates the communities certify as suitable. With respect to classes in Catholicism, the local Catholic bishop must approve instructors. Fernández Martínez lost his job when the local bishop refused to approve him. The bishop withdrew his approval when Fernández Martínez, a Catholic priest who had decided to marry and raise a family, appeared at a public protest in favor of optional clerical celibacy.

Fernández Martínez argued that the refusal to renew his contract violated his right under Article 8 of the Convention “to respect for his private and family life.” The court disagreed. The interference with the claimant’s right was justified in this case, it held. Spain had acted to protect the important principle of church autonomy, specifically, the right of the Catholic Church to designate which people could offer Catholic instruction in the public schools. Although the instructors were state employees, they were also representatives of the Church. It was not unreasonable for the Church to assert that Fernández Martínez’s conduct affected his credibility as a Catholic representative.

All this seems straightforward. So why was the vote so close? The eight dissenting judges expressed some unfortunate skepticism about what they called “absolute” church autonomy. To my mind, though, the key factor seems to have been that Fernández Martínez was a state employee, paid from public funds. As a result, the dissenters believed, the state had an obligation to him independent of the Church’s decision. It “is not the Bishop’s decision that should be scrutinized,” the dissenters wrote, “but the [state's] reaction to that decision.” For example, the state might have tried to find Fernández Martínez another position that would not involve teaching Catholicism. Instead, the state had simply let him go.

Judge Dmitry Dedov

In short, the closeness of the vote reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees, rather than the principle of church autonomy itself. (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.) On the other hand, one of the dissents does raise serious concerns. In a personal dissent, which no other member of the court joined, the Russian judge, Dmitry Dedov, argued that mandatory priestly celibacy was itself a human rights violation the court should not tolerate.

Mandatory celibacy has been a “well-known and serious problem” in Catholicism for centuries, Dedov wrote, citing Victor Hugo’s The Hunchback of Notre Dame and Colleen McCullough’s The Thorn Birds. It had caused a great deal of grief and led priests to abuse children “in many countries.” One could not justify holding people  to a vow of celibacy, even a voluntary one:

The Convention protects freedom of religion…. But it does not entitle religious organizations, even in the name of autonomy, to persecute their members for exercising fundamental human rights. If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.

“I believe,” he concluded, “that optional celibacy is the best way out of this problem and that it could also–I hope–serve as a preventive measure against clerical sex abuses of children in the future.”

I suppose Judge Dedov, who attended a Soviet university in the 1980s, is in a position to know something about totalitarianism. But, really, his dissent is an embarrassment. No one asked Judge Dedov for his views on clerical celibacy. The merit of religious doctrine is not a matter for secular human rights judges to address, and certainly not in a simplistic and gratuitously insulting way. (The Thorn Birds? Really?) And to assert, without offering evidence, that Catholicism’s rules on clerical celibacy have themselves caused the sex abuse crisis–a crisis that has, no doubt, many causes–is not what one expects from a judge.

In a human rights court, litigants from religious communities have a right to think the judges will treat them fairly and, to the extent possible, decide cases without bias. Judges are not there to offer musings on comparative religion. Judge Dedov’s dissent suggests he has a personal problem with the Catholic Church. He should take that problem somewhere else.

“Religion and Inequality in America” (Keister & Sherkat eds.)

Next month, Cambridge University Press will release Religion and Inequality in America: Research and Theory on Religion’s Role in Stratification, edited by Lisa A. Keister (Duke University) and Darren E. Sherkat (Southern Illinois University). The publisher’s description follows:

Religion is one of the strongest and most persistent correlates of social and economic inequalities. Theoretical progress in the study of stratification and inequality has provided the foundation for asking relevant questions, and modern data and analytic methods enable researchers to test their ideas in ways that eluded their predecessors. A rapidly growing body of research provides strong evidence that religious affiliation and beliefs affect many components of well-being, such as education, income, and wealth. Despite the growing quantity and quality of research connecting religion to inequality, no single volume to date brings together key figures to discuss various components of this process. This volume aims to fill this gap with contributions from top scholars in the fields of religion and sociology. The essays in this volume provide important new details about how and why religion and inequality are related by focusing on new indicators of inequality and well-being, combining and studying mediating factors in new and informative ways, focusing on critical and often understudied groups, and exploring the changing relationship between religion and inequality over time.

Justice Sotomayor’s Puzzling Dissent in the Wheaton College Case

Sonia_Sotomayor_in_SCOTUS_robe

Justice Sonia Sotomayor

The battle over the ACA’s Contraception Mandate continues. Yesterday, the Supreme Court granted a temporary injunction to Wheaton College, a religious nonprofit that is challenging the mandate in federal court. As a religious nonprofit, Wheaton qualifies for a regulatory accommodation. It can avoid the mandate by completing a form stating that it opposes covering contraceptives for its employees and giving this form to its third-party plan administrator; the administrator must then provide contraceptive coverage to the employees at its own expense. Wheaton objects that completing the form and submitting it to the administrator would make it complicit in providing coverage for contraceptives, which it opposes on religious grounds. As a consequence, Wheaton argues, the accommodation itself violates RFRA.

Yesterday, by 6-3 vote, the Court ruled that the government may not enforce the mandate against Wheaton pending final disposition of Wheaton’s legal challenge. As a result, until the case is resolved, Wheaton need not complete the form or provide it to the plan administrator. The government, which obviously knows about Wheaton’s challenge, may arrange contraceptive coverage for Wheaton’s employees in the meantime. The Court expressly stated that its grant of a temporary injunction “should not be construed as an expression of the Court’s views on the merits” of Wheaton’s challenge.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented. Her dissent is puzzling. On the one hand, she makes a valid point about the standard for granting this sort of injunction. Traditionally, a high bar exists. The Court will grant an injunction only if the legal rights at issue seem “indisputably clear.” At this point, it’s hard to say that about Wheaton’s claim. There are arguments on both sides and, as Justice Sotomayor points out, the district court hasn’t yet determined the facts and adjudicated the case.

But Justice Sotomayor didn’t stop there, and the rest of her opinion is unfortunately problematic. Here are three quick examples:

  • Internal Inconsistency: Notwithstanding her complaint that the Court had preempted the trial judge’s adjudication of the merits of Wheaton’s claim, Justice Sotomayor presumes to decide the merits herself. “Wheaton has not stated a viable claim under RFRA,” she writes. That seems rather a prejudicial statement, especially as Wheaton’s case, or one very like it, will undoubtedly reach the Court soon. Besides, the Court expressly stated that it wasn’t ruling on the merits of Wheaton’s claim. One should note that, later in her dissent, Justice Sotomayor says only that “Wheaton’s claim is likely to fail.” So perhaps her first statement was  just  a little careless. But one expects more in a Supreme Court opinion.
  • Unfair Criticism: Justice Sotomayor sharply criticizes the Court for going back on its word earlier this week in Hobby Lobby. In Hobby Lobby, the Court indicated that the accommodation is a less restrictive means of promoting the government’s interest in women’s health than the mandate itself. If the accommodation is an acceptable alternative in Hobby Lobby, she asks, why not in this case? This criticism is unfair. The Hobby Lobby Court didn’t say the accommodation is the least restrictive means of promoting the government’s interest, only that it is a less restrictive means than the mandate itself. True, the Court’s language in Hobby Lobby was a little opaque. But it’s wrong to suggest the Court is being sneaky or indecisive.
  • Pot and Kettle: You’d hardly know it from reading Justice Sotomayor’s opinion, but last January she herself joined the Court in granting a similar injunction to another religious nonprofit challenging the mandate, the Little Sisters of the Poor. In a footnote in yesterday’s opinion, Justice Sotomayor tries to distinguish the January case, but not very convincingly. The Little Sisters’ third-party administrator wasn’t going to cover contraceptives anyway, she writes, so, unlike Wheaton’s employees, the Little Sisters’ employees had nothing to lose. But does anyone think Wheaton’s employees will lose contraceptive coverage during the course of this litigation? Both Wheaton’s third-party administrator and the government are aware of the situation and will undoubtedly make such coverage available.

As I say, Justice Sotomayor could simply have discussed the high standard for a temporary injunction and left it there; that would have made for a much stronger opinion. As it is, her dissent suggests a level of frustration that the Court’s ruling yesterday really doesn’t merit. Perhaps Justice Sotomayor knows something she’s not saying about how the Justices will likely decide the next challenge to the mandate that reaches them.