Category Archives: Marc O. DeGirolami

Supplemental Briefing in Nonprofit Contraception Mandate Litigation Filed

The claimants and the federal government have now both filed their supplemental briefs, as requested by the Supreme Court in the order I discussed here. Reply briefs are due April 20.

After denying that any change to what it presently offers to nonprofits is needed, the basic thrust of the government’s brief is that (1) the Court’s proposal would not work for self-insured claimants; and (2) the Court’s proposal would only work for others “but only at a real cost to its effective implementation.” At page 15, the government says this about those claimants with insured plans: “In theory, however, the government could provide that the same  legal obligations arise following any request by an eligible employer with an insured plan for an insurance policy that excluded contraceptives to which the employer objects on religious grounds.” The exact mechanism through which this would work for self-insured plans remains unclear. The brief concludes by asking for a definitive resolution from the Court.

The claimants’ brief argues that (1) yes, as to insured claimants, there are many ways in which the employees of objecting claimants can receive the free coverage the government wants them to receive: it could impose a regulatory requirement on insurers to provide a separate plan for such employees, not backed by the threat of what are described as “draconian penalties” on the employers. Employees would have 2 insurance cards instead of 1; and (2) as to self-insured claimants, there is a related less restrictive means as well: “If commercial  insurance companies begin making truly separate contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges. Indeed, making such contraceptive-only plans available to employees of petitioners with self-insured plans would underscore that such coverage is truly separate from the coverage provided by petitioners that use commercial insurers, as employees of other employers would be receiving essentially the same contraceptive-only policies.” (20)

Stay tuned.

CLR and St. John’s Law School Host Justice Samuel Alito

Mark and I were delighted and honored to host Justice Samuel Alito at the Center for Law and Religion’s colloquium in law and religion yesterday. Justice Alito discussed the Court’s decisions, and his opinions, in Hobby Lobby v. Burwell; Town of Greece v. Galloway; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; CLS v. Martinez; Salazar v. Buono; and Summum v. Pleasant Grove, as well as his dissent from denial of certiorari in Ben-Levi v. Brown and two free exercise decisions he authored as a Third Circuit judge, Fraternal Order of Police v. City of Newark and Blackhawk v. Pennsylvania.

We had a lovely day today as well, as Justice Alito discussed several important free speech cases in which he dissented with my constitutional law class–US v. Stevens, Snyder v. Phelps, and US v. Alvarez. It was a true pleasure to have him. A few pictures below.

Alito 1Alito 5

Alito 3.jpg

The Supreme Court Order in the Little Sisters of the Poor et al. Cases

This week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

I can’t really improve on the insightful commentary of my friend, Rick Garnett, on what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies.

But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure through a trust called the Christian Brothers Employee Benefits Trust. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not shifting it from the employer.

Something to watch in the upcoming briefing.

DeGirolami on Wolterstorff on St. Paul’s View of Punishment

I’ve posted a  little reflection on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology, which is part of a symposium to be published in the Journal of Analytic Theology. Here’s the abstract:

This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

St. John’s Colloquium in Law and Religion Hosts Professor Robert George

George

We were delighted to welcome Princeton University’s Robert P. George yesterday at our law and religion colloquium. Professor George, who serves as chairman of the United States Commission on International Religious Freedom, presented his paper, “Religious Liberty and the Human Good,” a very interesting philosophical exploration of the meaning of religion.

The Optimist: Reflections on Justice Scalia

Some thoughts of mine on Justice Scalia at Commonweal. A bit from the end that is connected with our Tradition Project:

His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.

In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.

Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.

Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”

So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.

In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.

CLR Welcomes First Global Law Fellow

DSC_5035

L-R: Director Mark Movsesian, Fabiana Dal Cin, Associate Director Marc DeGirolami

This semester, CLR welcomes its first ever Global Law Fellow, Ms. Fabiana Dal Cin, a graduate student at the State University Cà Foscari in Venice, Italy. Ms. Dal Cin will spend the semester working on her PhD thesis in Catholic social theory and property law, as well as auditing two courses, the Colloquium on Law and Religion and Constitutional Law II. The law school website has the details, here. Welcome, Fabiana!

St. John’s Colloquium in Law and Religion Hosts Robin Fretwell Wilson

DSC_5084[1].JPG

On Tuesday, February 16, St. John’s Law and Religion Colloquium welcomed Professor Robin Fretwell Wilson. Professor Wilson, who was instrumental in bringing about the so-called “Utah compromise,” gave a very interesting talk about proposals from various perspectives to privatize marriage. The paper, “Getting Government out of marriage” Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage,” argued that that these proposals are unwise as a policy matter for a variety of reasons.

Call for Papers: Religious Perspectives on the Rule of Law at Bar-Ilan

A call for papers for a conference dealing with a interesting topic, via my friend Professor Michael Helfand.

Journal of Law, Religion & State

International Conference

Rule of Law – Religious Perspectives

Call for Papers

The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from—and stand in opposition to—state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.

In this conference we seek to study this tension and discuss the following questions:

  • Does religion (in general or a specific religion) accept the rule of state law?
  • What are the boundaries (if any) of such acceptance?
  • In what cases would religion challenge state law and in what cases would it seek exemptions?
  • Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
  • What other policies should states follow in response to these tensions?

Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:

  • What is the position of religion with regard to the concept of law and the rule of law?
  • Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
  • The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law—and by what kind of law: law of nature, morality?

These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.

Submissions are invited on the themes outlined above. An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than­­­­­­ April 15, 2016. Please indicate academic affiliation and attach a short CV. The conference committee will notify applicants of papers acceptance by the beginning of June, 2016. The participants will be required to submit a first (full) draft of their papers three weeks before the conference. The final papers will be published in the Journal of Law Religion and State subject to review.

The organizing committee:

Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel

Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel

JLRS website:

http://www.brill.com/publications/journals/journal-law-religion-and-state

Gratitude for Legal Traditions

I completed my law and tradition cycle of posts today at Liberty Law with this one,TP Banner Gratitude for Legal Traditions. Here is the rest of the cycle in one place:

And here’s a little bit from the beginning of the most recent post, which responds in part to Mark’s post on the subject:

The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.

Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”

Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.