March 8, 2012

Supreme Court on Freedom of Religion

In an earlier post, I had said that I did not think the requirement that health insurance including contraceptives being available to the employees of church-related institutions violated the constitutional right to the free exercise of religion. This afternoon I came across a passage from the SCOTUS Opinion on Employment Division v. Smith (1990) and think it supports my view, though the circumstances of the case were very different. The Opinion was penned by Justice Scalia.

Here is a portion I think relevant to the contraception discussion (read the full document if you wish.) :

We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.
(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,
are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Id. at 166-167.
Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases).
I would argue that this seems that the general health care insurance requirement, which is valid and neutral, and not explicitly religious, would not be held as a prohibition of the free exercise of religion. I'm also pleased to see that Justice Scalia makes the argument I did concerning withholding ones taxes out of a religious objection to the fact that some of those taxes are used for warfare.

Tobias Stanislas Haller BSG


Tim said...

Here in Colorado, there is a state constitutional amendment being pushed by the Dobson clan (aka Focus on the Family) which would permit a person or group to exercise their religious beliefs and the state government may not

"...directly or indirectly burden a person or organization by withholding benefits, assessing penalties or excluding a person or group from government programs or facilites."

Your summation in the text above goes very far in gently explaining how wrong-headed that idea is. Thank you many times over.

Tobias Stanislas Haller BSG said...

You're welcome, Tim. That constitutional amendment sounds a bit dodgy to me, and will lead to the courts getting entangled in matters of doctrine. The crucial points in the SCOTUS decision are validity, neutrality, and lack of any explict reference to religion. The case I cited was, at base, about the ceremonial use of peyote. The court ruled that the prohibition on peyote was not aimed at the religious belief, but at the use of peyote; that it was thus a neutral law that applied to any peyote use. I commend the whole decision to you as it is full of many other examples, some of which may be closer to the Colorado situation.

musculars said...

While articulated by Scalia the Smith opinion is not held in high esteem by conservative libertarians. It is also quite interesting that the liberal Blackmum wrote in the dissent, arguing for a more compeling interest rather than a law of general neutrality. I agree that that the free exercise law has limited applicability here but in the 1993 Religious Freedom Restoration Act, a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion, thus it states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability"

This is on its face a congresional refutation of Scalia's opinion.
It also shows how quickly these republican congresses are leading us into the absurd described by Scalia, where every man becomes a law unto himself.

Tobias Stanislas Haller BSG said...

Thank you, musculars. I had similar thoughts even as I cited the reference. As with so much of law (I think of the classic hedged definition of pornography as "I know it when i see it"!) it seems to be entirely subjective and based on the norms acceptable in a society, or the prejudices of the courts. Thus it was likely a no-brainer for Scalia to write against the use of peyote -- and perhaps we shall see what he has to say about estradiol when the shoe is on the other religious foot -- that is, a "mainstream" religion vs. a minority religion. So, in the case of the RFRA, it will boil down to what is meant by "substantially" burdening one's exercise. (My view is that the health care regulation does not impose a substantial burden for the reasons I've already laid out -- but then, that is my subjective view; a person with a deeply and profoundly based objection on relgious grounds may well feel otherwise.

The one thing that seems clear is that the freedom of religion cannot be absolute in a civil society; the issue is, where do you draw the lines? Anarchy in the name of religion is no better than anarchy in the name of secular ideology.

ps. Though as a libertarian at heart I think the regulation should be minimal... but again, that's my point of view. Some of those who cry out for liberty in the matter of health insurance are not so sanguine when it comes to marriages of which they disapprove... ;-)

musculars said...

First off I wish to correct a mistake I made in my previous post. The Religious Freedom and Restoration Act was enacted by a Democratic congress and Administration,not Republican.

Yes the subjectivity in the law makes it seem like we are peeling away at an onion with only precedent built yet upon precedent serving as footings. But it should give us pause in advancing an absolutist position.
I think this is dawning upon the Congress now given the repudiation and regret of their votes on the Blunt amendment and the turmoil of the USCCB whose no compromise position is shifting underneath them as the affected Catholic institutions are in marked contrast engaged in an apparent gracious dialogue with the Administration.

Your arguments concerning moral agency are indeed the more persuasive as they clearly enunciate no burden as being imposed. Also as corporate law limits liability and shields individuals from responsibility for better or worse to what extent can one even attribute a conscience to such entities?

Anonymous said...

"Your arguments concerning moral agency are indeed the more persuasive as they clearly enunciate no burden as being imposed."

Huh? "No burden"? What a ridiculous thing to say, assuming you are referring to the thread with the debate between Fr. Tobias and me. What his argument showed was that the RCC had to chuck aspects of our ecclesiology (what constitutes the "Roman Catholic Church") and moral theology regarding moral agency to fit the procrustean bed created by HHS Secretary Sabelius. No thanks, we'll fight. We perceive lots of burden.

I wasn't keen on the Smith decision when it came out. I apparently wasn't alone as it triggered the RFRA. In any case, deciding this in the courts will be a crap shoot, thus the focus on getting the Congress (either this one or the next) to intervene here to gut the HHS decree and put Sabelius back into the infernal hole she belongs.


Tobias Stanislas Haller BSG said...

Thank you, musculars. I'd not brought up the issue of whether corporate entities have "moral agency" of a "conscience" in this sense -- perhaps in light of the ruling on political contributions the current court might find so! But it is a good point and an aspect of the debate, as no individual is being forced to do anything that explicitly violates a religious teaching.

Fr. M., your comment is not an example of sweet reason. The ecclesiological argument is a bit fuzzy from the RC side. Why, just this morning I heard Archbishop Dolan say that offering a one-year window setting aside the statute of limitations for sexual abuse would bring financial ruin to the parishes. Talk about moral agency... and the intimate connection between actions and consequences and the oversight of bishops in relation to the institutions they oversee. Of course, that's an entirely different sort of burden.

Anonymous said...

"The ecclesiological argument is a bit fuzzy from the RC side."

No it isn't. Catholic Charities, Catholic universities, Catholic hospitals, and Catholic social service agencies are as much "the Roman Catholic Church" as St. Mary's, Smallville, Iowa. There isn't a Catholic ecclesiologist in the country who has said anything to the contrary publicly. I should know because I've been on the lookout for them, the breed mostly being on the progressive side of Catholic theologians.

I'm not familiar with the NY debate on the lifting of the statute of limitations and its ins-and-outs. I am familiar with the pros-and-cons of the CA version. The debate had nothing to do with ecclesiology and plenty to do with justice: justice for persons who were victimized long ago, justice for priests who were presented with charges (some posthumously) that defied a proper defense, due to the long passage of years. A debate with angels on both sides, so to speak. Still had nothing to do with ecclesiology.


Tobias Stanislas Haller BSG said...

Fr. Michael, I was expressing my shock at the Archbishop's seeming wish to abdicate moral responsibility on the basis of cost. That seems a less that responsible rationale for seeking to avoid lawsuits.

However, at the back of my mind is a more specific example of this fuzziness, I believe primarily in the Pacific NW or West (though I'm relying on memory here) where the diocesan chancery offices attempted to distance themselves from parishes implicated in cases of sexual misconduct. There have also been cases in which parishes maintained by religious orders were similarly distanced from episcopal authority. Then there are the numerous instances of efforts to deny responsibility from even higher up the ecclesiastical food chain. My point is that these unseemly efforts to insulate bishops from "moral agency" and legal responsibility are at odds with the thesis being advanced in the health-care debate: that the providers are morally responsible.

This is, it seems to me, where the fuzziness of the RC ecclesiology comes in -- a clear desire to call the shots, but less so when it comes to taking responsibility: and it is the latter that is at issue in the question of the moral agency of "the church" or anyone in it for the provision of health care benefits with which one disagrees.

I'm not talking baptismal theology here: I'm talking about the polity of authority and responsibility, and not so much in theory, but in practice. That is where the fuzziness comes in.

Anonymous said...

Dear Fr. Tobias--

Actually, I have some familiarity with the situation in the Pacific Northwest because it is starting to percolate around the US, especially in California where the Catholic dioceses are in process of civic legal reorganization.

The Catholic legal situation in the US is a bit confused. Canonically, parishes and dioceses exist in a relationship that does not match US civil law. This canonical relationship is based upon Catholic ecclesiology. Even though parishes constitute a diocese and are subordinate to the diocese, this subordination is limited. Catholic parish pastors actually have a surprising amount of freedom to conduct ministry and finances free from diocesan control. The diocese has limited means by which it can raise funds from the parishes and even sharply more limited ways to take assets from a parish. All of this is found in canon law. You might be aware of Rome's recent slapping down the Diocese of Cleveland for improperly shutting down parishes and stripping them of their assets. IMHO that judgement was a decade too late for Boston.

However, because of the 19th century trustee controversy (i.e. individual lay-owned parishes run by "trustees," seemingly equivalent to your vestry) US Catholic parishes have been civically chartered as corporation soles in the name of the local bishop, as if he were financially responsible for the parish. In fact, canonically that is the pastor's role. We have known for decades of the descrepency (and Rome has been prompting the American bishops to fix it for decades, long before the Crisis) but since the day-to-day operation of parishes does follow the canonical norm, it seemed like an expensive answer to a question nobody was asking.

Obviously, the judgments coming from the sexual abuse cases and settlements have forced a long-overdue look into US Catholic corporate structure.


Anonymous said...

I had not been aware of the bill in the New York legislature or the archbishop's comments. I have since read the bill itself and the archbishop's comments. The main thrust of the bill-- starting the clock at age 18-- seems incontrovertible to me, given what we know about the psychological after effects of child sexual abuse. The one year open window, as I said in my first comment, is debatable. Personally, I would be in favor of the window as long as it applied to defendants who were still alive. The NY proposal is also more neutral in that all institutions are involved, not just religious non-profits. In Caliornia we had the problem with deceased priests being accused with no evidence to back the accusation besides the self-testimony of the plantiffs. How justice could be served in such cases remains a mystery, but in our case an expensive one.

I do have to admit I find the cardinal's comments-- the schools! the charities!-- off-putting.


Tobias Stanislas Haller BSG said...

Thanks, Fr. Michael for the fuller details on both issues. Perhaps I'm not understanding what you mean by ecclesiology. I meant the institutional structural elements that give visible reality to the theological understandings of the church -- the way the church actually works, its "corporate structure" as you put it. Perhaps you do not regard that as ecclesiology but for me that is very much a part of it

Thus, it seems to me that the disconnections between parish leadership and the episcopate on the matters you cite indicate to me a degree of -- well I wouldn't say independence but -- separation or insulation. And it seems to me that if some such distance is tolerable on matters of property and culpability or responsibility for actions of inferior leaders under "responeat superior" then a degree of distance in culpability is similarly available on the issue of health insurance. It seems to me that by taking an extreme position the conference of bishops is expending its moral capital in the wrong place.

Anonymous said...

I do believe that RC ecclesiology is theology addressing the concept, "Institutional structural elements that give visible reality to the theological understandings of the church." RC ecclesiology is an extensive subject-- there are theologians whose sole specialty is this, as opposed to dogmatic, systematic, moral theology etc.-- and realize anything I write is a gross simplification. But the concept at work here is the canonical term "juridic person." A diocese is a juridic person. Each parish is a juridic person. Each Catholic Charities subsidiary, which are usually organized on diocesan lines, is a juridic person. Each Catholic hospital, to my knowledge, is a juridic person. Each juridic person is an expression of the Catholic Church on the local level, with varying degrees of excellence. The highest forms of excellence on found at the diocesan, ritual church (e.g. Latin Church and Maronites), and universal Church levels, which contain all the states of life (ordained, religious, and lay). But lower forms of Church (the parish, a social service agency, a family) are not less Catholic. The last sentence is a key concept: the degree of "Catholicity" isn't determined by degrees of separation from Pope Benedict XVI but by our baptisms, the virtues of faith, hope, and love, and sacramental communion with the Universal Church.

Every juridic person, as well as every individual Catholic human being, is subject to his local bishop. The bishop has the authority to create particular law (i.e. diocesan canon law) and has oversight over each Catholic. However, that authority is one of a pastor, not necessarily one of a CEO/COO. The oversight can be very remote, particularly in dioceses such as in California where there are hundreds of thousands or millions of nominal Catholics. Once again, the remoteness of direct oversight by the bishop isn't the measure by which we determine the Catholic nature of a person or organization.

Have to run, so a bit abbreviated.


Tobias Stanislas Haller BSG said...

Thanks, Fr. M. This makes a good deal of sense from my own experience of the RCC locally and more broadly. I think the degree of "fuzziness" I was referring to lies in that variable "distance" between the various elements. My point is that there is moral distance as well as "oversight" distance, or "remoteness" to use your term. I never question that there is a uniform, almost holographic, quality to actual "catholicity" in terms of being part of the RCC -- that is, each member is as much a member as any other.

musculars said...

I remain persuaded that Fr. Michael and the bishops continue to repeat the same error that it is the institutional employer that is providing contraception. Health care benefits are a form of remuneration, therefore the money that pays for insurance belongs as earned to the employee, not the institution.
Furthermore the employer is the fiduciary. A fiduciary must act for the exclusive benefit of plan members. My understanding is that if a conflict of interest arises a fiduciary must legally step aside in favor of a third party free of conflict.
Does not the president's compromise provide for that third party?

It may of course be true that RC ecclesiology admits RC hospitals and universities are as much the Catholic church as the parish church but to do so legally would then make government contracts a glaring violation of the establishment clause. In fact they are separate legal entities fashioned in such a way that permits these non profits to operate in the secular realm and as such they cannot manage their operations in a discriminatory manner against any taxpayer.

Fr. Michael's Constantinian description of RC ecclesiology further brings up the question as to who speaks for the Church because of the obvious disconnect if not outright schism between the moral positions of the Catholic laity and the bishops and the Pope. The teaching on birth control has not been accepted so it seems a bit tenuous for the bishops to base a constitutional argument upon a position with which its adherents do not concur. In fact in all aspects of the "cultural war" the bishops need to go outside the Church and ally themselves with the most conservative religious forces because the vast majority of its laity do not support them.

Happy St Patrick's Day to you and Fr. Michael. May Celtic spiriutality be the foundation of a new eccelsiology. One of original blessedness, mutual submission, and ceaseless creativity.

Tobias Stanislas Haller BSG said...

Thanks, Musculars. You make some cogent observations here, in particular the issue of civic participation, and the extent to which this "involves" an entity that is a branch or member of the church. I am reminded of that powerful line from "All My Sons" -- "Don't you live in the world?"

A blessed St. Pat's to you too...

Anonymous said...


Excellent comment of yours. I would like to address three points within it: " legally would then make government contracts a glaring violation of the establishment clause." I don't see why. The Federal Government (e.g. Medicare) doesn't pay the RCC for the goal of making the RCC the Established Church of the USA. Rather, the RCC is paid because it is carrying out a policy objective of the Federal Government: health care. Catholic hospitals compete on an equal basis with secular and other religious hospitals, and compete for funds on secular grounds.

"A fiduciary must act for the exclusive benefit of plan members." The fiduciary principle is an aspect of civil law, and perhaps financial ethics or custom. In RCC moral theology, civil law and the obligations it imposes are subordinate to natural law and divine revelation. So if an aspect of being a fiduciary would drag the RCC into an immoral situation, than we will disregard those aspects of being a fiduciary.

"The teaching on birth control has not been accepted..." Even if true, irrelevant to the argument. The teachings of Jesus were true because of their Source, not because the disciples and other hearers grasped the meaning of His words during the public ministry. The fact that a high percentage of Catholics in the US dissent on birth control says nothing about the veracity of the teaching but much to say about the contemporary spiritual health of the RCC in the USA.

Peace, FrMichael

musculars said...

@ Fr Michael,
I would not argue that the veracity of a position depends on the number of people who hold it but it is not entirely irrelevant to the discussion. For if the bishops hold the mandate violates the conscience of Roman Catholics when in fact it really doesn't seem to be an issue with the majority of Catholic women who use contraceptives the objection of conscience while perhaps real for the bishops (who should not have occasion to use contraceptives) is still rather abstract and thus on this basis seems rather tenuous.

Your reading of the establishment clause seems far too narrow as the scope you accord the free exercise clause seems too broad to my understandings. Excessive entanglement is cause of concern for both church and state concerning the establishment clause.
We do not seem to greatly disagree that Catholic organizations when seeking out government contracts must do so on secular grounds, but if that is true how can they then seek cover into the religious realm and claim a religious exemption based on the first amendment and fulfill the terms of the contracts? If the main question before us is what are the constitutional limits of the federal government in executing public policy that affects faith-based entities engaged in public (government funded) service ? I would think that the governnent could not discriminate between a strictly secular and religiously affiliated organization making accomdations problematic.

Again we acknowledge that if a conflict arises the fiduciary would step aside so as to not violate his conscience,the law provides a third party.
In a similar fashion the President has provided the third party so that the objection of the bishops paying for insurance that offers contraception can be honored.
The response of the bishops has been to label this a fudge. (Anglicans as a rule find that fudge is the best solution) but in fact this appears to be a recognized practice in law to honor conscientious objection. If it is this stepping aside you are discarding on the basis of natural law and moral theology than I fear your objection as Fr Haller has noted is constrained to being offended as to do more would impose catholic dogmatic teaching upon secular law.

Another example of this is playing out in Chicago and elsewhere where same sex couples were being denied adoptions and therefore were discriminated against by the adoption agencies of Catholic Charities in contravention of the secular law but in accordance with the Bishops' directives. Many have argued that this is the next area the bishops are headed in arguing for religious exemption.

I believe the discussion is moving on though seemingly inexhaustable in its ramifications so while I'll refrain from posting further (and have no wish to abuse the good graces of the blog owner) I'll leave the last word to Fr Michael should he care to respond further.

Anonymous said...


Thanks again for your comments. Rather than a point-by-point response, I would like to get at the overarching issue: where is the Congress' constitutional authority to limit a constitutional right, here, the First Amendment? I could see in a case where constitutional rights/duties were in conflict (e.g. drafting all abled-bodied males to fight a world war vs. the religious freedom of pacifists) where the First Amendment rights of individuals and organizations might be curbed. But how does a law, and even worse, an administrative decision by a Cabinet secretary, curb a constitutionally-guarenteed freedom? The Congress has a constitutional responsibility to provide for the common defense. It has no such responsibility to provide for a comprehensive national health care system.

As someone who once upon a time earned a Bachelor in American History with a concentration in the colonial and early Republic, I find the current political debates dumbfounding. IMHO constitutionally-defined limited government died long ago: now all three branches of the Federal Government are just winging it.



Tobias Stanislas Haller BSG said...

Thank you, musculars, for these points. I think you are correct in noting the ambiguity in the RC position, and the lack of clarity in the argument, from both a political and moral perspective.

Fr. Michael, you, on the other hand, continue to beg the question by assuming that the First Amendment has in fact been violated. As in what musculars pointed out, you appear to want to maximize the "free exercise" aspect while minimizing the "establishment" part almost out of existence. In all of this is the tension of being a religious person in a pluralistic society, governed by laws of equal application, with particular exceptions. But in the present case, and given the President's accommodation, no Roman Catholic institution is being placed in the position of having either to use or directly pay for contraceptive drugs. (This leaves to one side the whole issue of corporate identity, as institutions do not "use" contraceptives. I accept that the provision of same could conceivably be a violation of RC morals.) So on the fundamental constitutional question you have not demonstrated that the "free exercise" has been "prohibited" -- which is what the First Amendment forbids.

That question will be settled in the courts, but I have yet to see an argument that demonstrates how the general and by intent universal requirement to provide a benefit to employees (none of them forced to accept or make use of it) constitutes a "prohibition" of the "free exercise" of religion. If you can point me to an argument from the bishops or others on that side that makes a case, I'd be happy to look at it. To date, poor analogies like the Kosher Deli remain just that, poor analogies.

Anonymous said...

Well, to me the Kosher Deli seems apt, so I guess we are going to have to agree to disagree. If the Federal Government and you can't see how forcing a Catholic institution to pay a private entity for policies that fund Plan B, contraception, and sterilizations isn't a curbing of free expression, not sure what else I could say that would change your mind: my "random killing of black men" proviso was my best attempt to make the point.

Thanks to you and musculars for the dialogue.