Tag Archives: Freedom of Conscience

Amicus Brief of Constitutional Law Scholars in Stormans v. Salecky

I am happy to have joined an amicus brief together with several other constitutional law professors –but written by Doug Laycock and some excellent lawyers in Austin, Texas — in Stormans v. Salecky, a case currently being litigated in the Western District of Washington and the Ninth Circuit.  The case concerns the free exercise rights of several pharmacists at small pharmacies who have religious conscience objections to dispensing Plan B emergency contraception, and who are being compelled to do so by the Washington State Board of Pharmacy’s regulations requiring all pharmacies to dispense certain drugs, without exception.  I am particularly keen on the description in the brief of Smith and Lukumi-Babalu as representing a kind of range of general applicability — the idea being that many cases will fall somewhere between those two points.  That’s nifty, because one often sees Lukumi instead described as an “exception” to the Smith “rule,” which has different connotations.  You can read more about the case in Judge Leighton’s most recent opinion.

“Pussy Riot,” Russian Feminist Punk Band, to Remain in Jail

I don’t know how many CLR Forum readers are following this story, but it’s a major news item in Russia and has drawn attention in the international human rights community as well. Last February, in a protest against Vladimir Putin, a Russian feminist punk band called “Pussy Riot” (above) stormed the altar at the Cathedral of Christ the Savior in Moscow and performed performed a”punk prayer” called “Mother of God, Cast Putin Out.” You can find the video on the internet; it’s pretty juvenile. Authorities arrested three members of the band for the crime of “hooliganism,” which carries a sentence of seven  years. They have been in jail since March. A Russian court today extended their pretrial detention for another six months, to January 2013. The imprisonment and prosecution has become a cause célèbre in Russia, pitting the Orthodox Church hierarchy, which resents the cathedral protest as a sacrilege, against liberals, who resent the Orthodox Church’s support for Putin and see the threatened punishment as arbitrary and extreme. Amnesty International has declared the members of Pussy Riot “prisoners of conscience.” Russians themselves are divided about the case. In a recent poll of Muscovites, half said they opposed the prosecution, but 36% approved.

The Anniversary of the Virginia Declaration of Rights

On this date in 1776, the Virginia Declaration of Rights was adopted by the Virginia legislature, preceding the Virginia State Constitution by a few days.  The portion dealing with religious liberty was drafted by James Madison and is generally considered to be an important antecedent to the federal constitutional right of free exercise of religion (adopted in 1791).  Here is the text of Article XVI:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his “first allegiance was to the will of God” and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently “attached to the principles of the Constitution.”  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you’re liable to walk right by this unimposing gem of a watercolor. 

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Senate Tables Conscience Amendment

The Senate earlier today debated an amendment to a transportation bill introduced by Senator Roy Blunt of Missouri which would allow a religious employer to opt out of any health care decision for any religious reason of conscience.  The amendment was quite broad in scope, and it was tabled by a vote of 51-48.

Garry Wills Puts the “Con” in Conscience

Here is a dyspeptic piece by Garry Wills which gets numerous things wrong about the nature of the conscience claim being asserted in response to the HHS mandate.  Under the heading, “The Phony Religious Liberty Argument,” Wills says:

The bishops’ opposition to contraception is not an argument for a “conscience exemption.” It is a way of imposing Catholic requirements on non-Catholics. This is religious dictatorship, not religious freedom.

Contraception is not even a religious matter. Nowhere in Scripture or the Creed is it forbidden. Catholic authorities themselves say it is a matter of “natural law,” over which natural reason is the arbiter—and natural reason, even for Catholics, has long rejected the idea that contraception is evil. More of that later; what matters here is that contraception is legal, ordinary, and accepted even by most Catholics.

The confusions in these short paragraphs are astonishing, particularly for a writer of Wills’s deserved reputation.  First, whether “most Catholics,” including Wills, “accept[]” contraception is completely irrelevant.  The issue is not what Wills, or any other dissident Catholic, thinks ordinary or accepts.  The issue is what those with authority to speak on behalf of the Catholic Church believe.  And we have strong evidence that they believe that paying for contraception and abortifacient services is anathema.  The Church is a hierarchical institution, and so it matters who has authority to speak on its behalf to the agents of the state.  Much as it may distress him, that’s not Wills.

Second, to say that opposition to the mandate represents “religious dictatorship” may sound good, but the substance of the comment is wrong.  No one — least of all “the bishops” — is preventing anyone from obtaining whatever products they like.  No one is monitoring anyone, no one is tracking the way that employees use their money, no one is stopping anyone else from using their money as they like.  The issue is not “dictatorship” — religious or secular — and this sort of overheated rhetoric is quite silly.  The issue is whether the state can compel the religious employer to pay for products for its employees as to which it objects in conscience (I am bracketing the question of what President Obama’s February 10 announcement does).  Obviously there are disagreements about that question.  But the resolution of that issue, one way or the other, is not evidence of “dictatorship.”  It’s something far short of that, but something we ought to attend to nevertheless.

Oversight Committee Holds Hearing on HHS Contraception Mandate

Congress’s Committee on Oversight and Government Reform is currently holding a hearing on the Administration’s HHS contraception and abortifacient mandate.  The title of the hearing is, “Lines Crossed: Separation of Church and State.  Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?“  The hearing is being live-streamed at the attached link.

An Uncertain Development in the HHS Mandate

As Mark reports below, President Obama announced this afternoon that the Administration is reversing the decision to require religious employers to pay for health plans which cover contraceptives and abortifacients.  The insurers will instead be required to cover them for free.  [UPDATE: I have amended the title of this post and stricken out the material above because at this point, given the first question that I raise below, I am deeply uncertain exactly what this change means.  More soon.]  There remains the issue of what the religious institutions will be required to tell their employees about the availability of these products and services.

ADDENDUM: Some additional questions beyond the issue of what religious institutions will need to say to their employees about the availability of contraceptives through their insurer: (1) Won’t the insurer simply pass the cost of the products and services which it is being compelled provide onto the insureds, including the religious institutions?; (2) What happens when a religious institution is self-insured?; (3) Exactly who qualifies for exemption under the rule?

Contraceptives and the Complexities of American Catholicism

There’s word this morning that the Obama Administration plans to announce a compromise on the new HHS regs that require religiously-affiliated entities to cover contraceptives, sterilization, and abortifacients in employee health insurance plans. (When stories start to leak about how the Vice President opposed the regs, you know the White House is in political trouble). It’s not clear what the compromise is, exactly, or whether it will satisfy religious leaders.

For the moment, though, I’d like to focus on something this crisis reveals about American Catholicism. Some proponents of the HHS regs have been shocked at the negative reaction from many American Catholics, large numbers of whom use artificial birth control. Surely Catholics who use artificial birth control should have rallied to the Administration’s side. As Ross Douthat points out in an insightful column, however, religious belief and practice are rarely so clear-cut. One should not, he says,

gloss[] over the complexities of religious faith and practice, which ensure that many Catholics’ relationship to the teachings of their Church is more complicated than a simple “agree or disagree.” There are Catholics who accept the Church’s view on contraception but simply don’t live up to it. There are Catholics who respect the general point of the teaching while questioning its application to every individual case…. There are many American Catholics, as Daniel McCarthy noted in a perceptive interview recently, who are neither devout nor dissidents — Catholics who practice their faith intermittently, drifting away and then being tugged back, without having any particular desire to see its teachings changed to suit their lifestyles. And then there are Catholics (and this is a large category) who do explicitly dissent from Church teaching, but who also don’t want to see secular governments set the rules for what Catholic institutions can and cannot do…. If this issue a matter of conscience only for the “formal hierarchy of the Catholic Church,” then why is the White House taking so much criticism from Catholics with a reputation for disagreeing with the hierarchy — from Commonweal Catholics and National Catholic Reporter Catholics, from famous Catholic liberals like E.J. Dionne and Chris Matthews, Catholic Democrats like Tim Kaine and Bob Casey, Jr., and so on? The answer can’t be that they’re all afraid of the bishops, since we’ve just established that most Catholics don’t agree with the bishops on this issue. Something else is going on here.

“Neither devout nor dissident” — that phrase probably captures the way most people feel, most of the time, about their faith traditions. It surely describes many American Catholics today. When one takes into account the complex social reality of American Catholicism, and the still-profound sense Americans have that government should not interfere with religious conscience, the reaction to the new HHS regs is not too surprising, after all.

Fiddes on the Roots of Religious Freedom

Paul S. Fiddes (University of Oxford) has posted The Root of Religious Freedom: Interpreting Some Muslim and Christian Sacred Texts.  The abstract follows.

A comparison of a recent Open Letter from Islamic scholars entitled A Common Word Between Us and You (2007) with an earlier Christian text, A Short Declaration of the Mistery of Iniquity by Thomas Helwys (1612), shows that both locate a claim for religious freedom in a theological appeal to the sovereignty of God. Both also state or imply a claim for freedom of conscience with the same theological grounding. A Common Word proffers an exegesis of the Qur’anic text Aal ‘Imran 64 in which the phrase ‘that none of us should take others for lords besides God’ is understood as a defence of religious liberty. Three reasons are offered for this interpretation: consistency with the commentary tradition, the situational need for religious co-existence and a hermeneutic in which love is predominant. The Mistery of Iniquity proffers an exegesis of New Testament texts, and especially John 18:36 (‘My kingdom is not of this world’), which similarly roots religious freedom in the sovereign claims of God over human life. This ‘theological’ approach seems to have resonance with an unease about the anthropocentric nature of ‘human rights’ as expressed recently in some Christian theology. However, there are gains in setting a theological approach alongside an appeal to human rights rather than allowing one to suppress the other. Comparison of the two texts under consideration, and of the reasons why they adopt the hermeneutic they do, allows us to understand how an assertion of religious freedom might be framed in terms that carry conviction within different religious communities.