John Courtney Murray is still dead

John Courtney Murray is still dead July 1, 2014

In the past couple of posts we’ve discussed, among other things, the potential hazards when courts are asked to rule about either the factual validity or the sincerity of religious beliefs. Here’s Carmen Green on the very real hazard of the courts failing to consider those factors when a case requires them to:

The majority says that the birth control mandate does place a “substantial burden” on Hobby Lobby’s religious beliefs. And this sentence is crucial: “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

Note how carefully Alito worded that sentence, “according to their religious beliefs” these items are abortifacients. He had to word it this carefully because the four contraceptives at issue (Mirena, Paragard, Plan B, and Ella) are NOT, in fact, abortifacients according to the FDA. This is really crucial. The majority allowed Hobby Lobby to define for itself what in fact causes an abortion. There is a difference, you see, between saying “my religious belief is that abortion is immoral” [the religious belief Hobby Lobby has really pushed hard in all its filings] and saying “my religious belief is that Mirena causes abortion.” The first cannot and should not be challenged by a court, if that’s your belief, that’s your belief. The second is a question of fact, which can be proved or disproved via science. Individuals should not be able to declare that anything they dislike causes abortion and therefore avoid any laws relating to that item. Because there is no steady, safe line to draw between those who think IUDs cause abortions and those who think Tylenol causes abortion. Both are scientifically incorrect statements. For a court to accept the first and throw out the second because it’s “ludicrous” is picking and choosing favorites among religious beliefs, an extremely dangerous path.

That’s from a Facebook posting by Green, a recent graduate of Georgetown Law. Green’s discussion of the Hobby Lobby ruling is one of the clearest, easiest-to-follow summaries of the case, the ruling, and the likely implications of that ruling. Libby Anne has posted the entire thing and you should go and read the entire thing.

No, don’t keep reading here. Seriously, go read the entire thing.

Green provides a good summary of what I referred to earlier as where Justice Alito goes off the rails:

The majority claims that this ruling doesn’t affect coverage for other forms of medical care, like blood transfusions or vaccines. This part of the opinion is especially vacuous, in my opinion. First, Alito says HHS provided no evidence that anyone has ever or would ever file a challenge against anything but contraception. In a country where children are dying because their parents refuse, on religious grounds, to provide them with any medical care whatsoever, Justice Alito’s statement is ignorant at best. Second, Alito claims that “[o]ther coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” In other words, when a Christian Scientist brings a challenge, claiming that their closely held corporation should not have to provide any health insurance coverage at all (because all medical care is a violation of their religion), the federal courts will have to determine whether each individual health care procedure or prescription mandated by the ACA meets the strict scrutiny analysis.

This part of the ruling just baffles me. Here is what Alito wrote:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.

As Sarah Posner wrote of this statement: “It’s hard to tell: is this a disingenuous deflection of criticism of far-reaching decision, or an honest reflection of just how yucky the majority finds contraception?”

And buried.

I’m afraid it’s the latter. Why is contraception so self-evidently different from any other insurance requirement? This applies only to contraception and not to vaccinations — OK, why not? What is the legal basis or logical basis for this distinction? What standard is Alito applying or what principle is he appealing to when he asserts that “vaccinations or blood transfusions” are just obviously different from contraception?

He never says. He doesn’t explain why his decision “should not be understood” to apply to anything, or to everything, besides contraceptive care.

What should we understand based on this assertion that this should not be understood?

The reference to “blood transfusions” hints at one possible basis for this distinction in Alito’s mind, but it suggests something rather ugly and tribal, and something flagrantly unconstitutional. Blood transfusions, you see, are religiously forbidden for Jehovah’s Witnesses. That is to say, in Alito’s apparent way of thinking, the religious scruples against blood transfusions do not involve a legitimate religion. Concern about abortion, however — even when that concern has no factual basis — is a legitimate religious scruple because, well, it’s Catholic. Just like Sam Alito. And just like John Roberts, Antonin Scalia, Anthony Kennedy and Clarence Thomas — the only justices who agreed with Alito’s inexplicable assertion that this alleged concern about alleged “abortifacients” is self-evidently different from other such claims.

Like I said, that seems unbearably ugly. It would suggest that Alito is trying to write his own sectarian views into law without even bothering to defend them. But he hasn’t given us any other explanation for this distinction. And, I’m afraid, he reinforces this suspicion elsewhere in his opinion. This is the portion that Martin Longman discussed yesterday — the place where Alito tries to have it both ways by 1) accepting and defending the validity of the corporation’s moral claim, while simultaneously 2) pretending that it’s not his place to determine whether or not that moral claim is valid:

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34

Or, in other words, it’s not the place of this court to determine whether or not the corporations’ beliefs are correct, but they’re correct.

And footnote 34 there, I’m afraid, does little to discourage the suspicion that Alito’s ruling is based on thinly veiled sectarian tribalism. It cites the 1935 book Moral and Pastoral Theology by H. Davis, S.J. And Davis doesn’t refer to “immoral acts.” Davis writes about sin.

I would guess Alito is quoting from Davis’ first volume, subtitled “Human Acts, Law, Sin, Virtue,” but 1935 seems to be the publication date of the third volume of Fr. Davis’ Moral and Pastoral Theology — the one subtitled “The Sacraments in General, Baptism, Confirmation, Holy Eucharist, Penance, Indulgences, Censures.”

OK, then.

All of that leads me to the same conclusion Kevin Drum reached yesterday:

It’s important to recognize what Alito is saying here. Basically, he’s making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you’re probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way — as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons — it will be treated with the utmost deference.

This is not a ruling that upholds religious liberty. It is a ruling that specifically enshrines opposition to abortion as the most important religious liberty in America.

More than that, it enshrines opposition to abortion as the only legitimate expression of religious liberty, which is to say it enshrines opposition to abortion as the only legitimate form of religion.

Now go read Carmen Green’s summary and discussion of the ruling, because I know some of you just skipped past this link the first few times.


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