Archive for the ‘Law’ Category

A Major Victory for Religious Freedom

Friday, October 6th, 2017

After years of regulatory and courtroom battling, the Government has finally recognized that it was a violation of religious liberty to impose what we have long called the “HHS Mandate” on those with religious objections to contraception, abortion-causing drugs and sterilization. That mandate was cooked out of thin air by the previous Administration under the purported authority of the Affordable Care Act. The current Administration has now issued new rules that give relief to religious and other organizations, as well as individuals.

This is a major victory, and we should express our gratitude to the President and his Administration, particularly those in the Department of Health and Human Services.

The sweep of the new rules is very broad. First, the admission that the original (and the many revised) rules violated the religious freedom of institutions and individuals (direct quotations from the new proposed rules are in italics):

  • “We have concluded that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance imposes a substantial burden on religious exercise under RFRA.” This corrects the error of the previous Administration, which stubbornly insisted that the Mandate did not impose a burden on religious belief.
  • “Our reconsideration of these issues has also led us to conclude… that the Mandate imposes a substantial burden on the religious beliefs of individual employees who oppose contraceptive coverage and would be able to obtain a plan that omits contraception…” Under the original Mandate, individuals with religious objections had no hope of any relief.
  • “the Departments have concluded that the application of the Mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest.”This is a huge concession, and reverses the adamant — and hardly credible — insistence by the previous Administration that riding roughshod over the religious objections served a vital public interest.
  • “In the Departments’ view, a broader exemption is a more direct, effective means of satisfying all bona fide religious objectors.” Note the new emphasis here of actually showing respect for religious objectors, instead of brushing them aside, which was the attitude of the previous Administration.

Now, the specifics, which also show a broad desire to protect religious liberty:

  • “With respect to employers that sponsor group health plans, the new language… provides exemptions for employers that object to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling based on sincerely held religious beliefs.” This is the most significant provision, because it allows all employers with religious organizations to opt out of the offensive coverage without going through any bureaucratic process.
  • “Consistent with the restated exemption, exempt entities will not be required to comply with a self-certification process.” This removes one of the most objectionable provisions of the previous Mandate, which essentially required religious organizations to give a permission slip for offensive services to be provided — putting them in direct cooperation with evil.
  • “the Departments do not limit the Guidelines exemption with reference to nonprofit status… the rules extend the exemption to the plans of closely held for-profit entities. This is consistent with the Supreme Court’s ruling in Hobby Lobby… the rules extend the exemption to the plans of for-profit entities that are not closely held.” This is a huge expansion of the exemption, because it will not just be limited to organizations that are non-profit or to those for-profit entities that satisfy standards that vary from state to state to determine if they are “closely held”.
  • “These interim final rules extend the exemption… to health insurance issuers offering group or individual health insurance coverage that sincerely hold their own religious objections to providing coverage for contraceptive services.” This would also allow insurance companies with religious values to operate, providing a potential safe harbor from these and other morally offensive measures.
  • “This individual exemption allows plan sponsors and issuers that do not specifically object to contraceptive coverage to offer religiously acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object.” Another major victory, this would permit — but not require — insurers to offer objecting individuals to opt out of the offensive coverage.

This is the result of steadfast opposition and litigation by many organizations and individuals who refused to surrender their religious principles  to over-reaching, ideologically-driven government regulation. Particuarly worthy of mention are the great defenders of religious freedom at Alliance Defending Freedom and Becket.

We can legitimately celebrate this victory, and thank God that our government has shown a new-found respect for our first and most precious freedom.

The Costs of Political Ignorance

Friday, September 15th, 2017

September 17 is the 230th anniversary of the signing of the United States Constitution. That document, in addition to being our governing text, is one of the greatest accomplishment of political and legal thinking and writing. Its endurance through such a long and troubled history, and its significance as a model for other nations that yearn to have ordered liberty, cannot be underestimated. For good reason, it has been called America’s sacred text, a secular Bible of sorts, the centerpiece of our civic religion.

So why are so many Americans so ignorant about the Constitution?

A study recently published by the Annenberg Center yielded appalling results when Americans were asked about the provisions of the Constitution. Some of the findings about constitutional rights:

  • 37% couldn’t name a single one of the rights guaranteed by the First Amendment.
  • Of those who could identify some First Amendment rights, only 15% named freedom of religion, 14% freedom of the press, 10% right to assemble, and 3% right to petition the government.
  • On the slightly brighter side, 48% could identify freedom of speech.

When it came to the structure of our government, things weren’t much better:

  • Only 26% could name all three branches of government.
  • 33% could not name a single one of the three branches.
  • 27% could only name one branch.

These results confirm what political scientists have long known — the great majority of people lack basic knowledge about how our government works and what it does. For example, the Pew Center periodically surveys people about current events, and the results are regularly dismal. Less than half of Americans can identify significant public officials and even fewer know important facts, like the approximate unemployment rate or that the government spends more on Social Security than foreign aid or that only about 13% of Americans are foreign-born.

This is a grave problem. It is true that a great deal of political ignorance is normal and rational — most political issues have little direct relevance to or impact on people’s lives. Yet the health of democracy depends on people knowing a certain amount of basic, common information if we are going to have anything like a rational public discourse.

The dangers of this political ignorance can be seen all around us. The tribalistic nature of modern partisanship is a clear example. More and more, people can be easily manipulated by demagogues or misled by propaganda that appeal to emotion rather than fact-based reason. Studies are showing that people with less political knowledge are easily swayed by changing positions of their party or leaders, instead of holding them accountable for breaking promises or betraying key principles. The scourge of racism and xenophobia is a direct result of political ignorance. In a society that inundates us with information, ignorance prevents us from sifting the wheat from the chaff.

There is a basic civic duty to be an informed citizen. It is bizarre to me that we require all applicants for citizenship to pass a civics test, but anyone can vote regardless of how much they know or care. For goodness sake, we require more knowledge to get a driver’s license than we do from voters. That civics test is really not that hard ( you can try a sample test here). Is it really too much to ask that people pass the test in order to qualify to vote?

Political ignorance is also a very big deal for us Catholics. Ignorance about constitutional rights is dangerous at a time when our religious liberty is under pressure. Anti-Catholic bigotry flares up regularly, fueled by the stereotypes that come from ignorance.

We also have a very grave moral duty as Catholics to become well-informed citizens and voters. The Compendium of the Social Doctrine of the Church puts it very strongly:

414. Information is among the principal instruments of democratic participation. Participation without an understanding of the situation of the political community, the facts and the proposed solutions to problems is unthinkable.

Unfortunately, what is “unthinkable” is all too common in our nation. The cost of this ignorance is the debased politics that is so dispiriting to watch. On this anniversary of our Constitution, it would be a good time to be highly resolved that “we the people” will remedy this and become well-informed, morally-responsible citizens and voters.

Don’t Dishonor Columbus

Thursday, August 24th, 2017

The movement to remove some public historical monuments has gained considerable momentum after the tragic events in Charlotteville.

I am sympathetic to the removal of statues to Confederate leaders. These men fought for an evil and ignoble cause and their statues were for the most part erected to reinforce a wicked regime of white supremacy during the Jim Crow era. Calling attention to this, and cleansing the public square of these monuments, may help to reinforce the rejection of racism that our society clearly needs.

But the “progressives” in our nation have begun to turn their iconoclastic attention to other historical monuments, and in this they are not on such solid ground. In particular, by targeting Christopher Columbus, they have gone too far and have shown a deplorable lack of moral and historical sense. To dishonor Columbus would be a crime against our history.

Modern progressive ideology holds Columbus responsible for all that went wrong after the discovery of the New World. Those effects are undeniable and Columbus was certainly implicated in conduct that by modern standards are unacceptable (but which is also grossly exaggerated). Historians disagree about the extent of his involvement in that conduct, and we should leave it to them and their researches to provide the basic facts.

But on the moral level, the legacy and conduct of Columbus deserve great respect and honor. To understand Columbus, we have to appreciate the completely Christian mind with which he — along with all of his contemporaries — viewed the world. The modern mind cannot understand the centrality of faith to a man such as Columbus, a deeply devout Christian of the late Medieval era. His faith affected every part of his view of the world, and was the most significant motivation for all that he did. To him, the liberation of Jerusalem the Holy City of God and the conversion of non-believers to offer them salvation were moral imperatives of the highest order. In his view, the occupation of the Holy Land by Muslims and the fall of Constantinople were not just political and military matters, but were catastrophes that had apocalyptic significance and demanded a response by Christians.

Columbus’s nautical ventures were not purely commercial in nature, as our narrow modern economic obsession would view it. Nor was he bent on conquest and oppression, or seeking to discover a new continent, or to prove that the world was round, as our contemporary historical ignorance would suggest. It was never Columbus’s intention to spread disease or to commit genocide. Unlike Confederate generals, it was never a fundamental part of his mission to enslave anyone. To allege otherwise is to commit a vicious and ignorant historical slander.

Columbus’s mission always and at its heart was motivated by his deep Christian religious beliefs. To understand this we can just look to Columbus’ own diary, in which he explained that he sought the journey in hope that he would find enough gold and spices to finance a crusade to liberate the Holy Sepulcher, and he urged the King and Queen of Spain “to spend all the profits of my enterprise on the conquest of Jerusalem”.

His faith and trust in God was what led him to his great adventure. This is what gave him the courage never to give up on his goal, despite all the personal hardships and disappointments he suffered. He was impelled always by what he saw as God’s holy will for him, his part in the mission to bring the Gospel to the whole world, his role in preparation for the coming of the Kingdom of God.

It is clear that Columbus did not foresee the negative consequences of his journeys. But who among us can see all the results of our actions? How was he to know that the natives of the Americas would be vulnerable to European diseases (and vice versa) or that the new colonists would act as monsters? It’s also important to recall that we can say with absolute certainty that there have been enormous good consequences of Columbus’s intrepid journeys. The opening of a whole new world has offered people an abundance of material blessings and has spread the Gospel, offering the hope of salvation to billions of people. This cannot be discounted in our evaluation of Columbus. Indeed, it should be given the tremendous weight that it deserves.

It is certainly ironic to see Columbus denounced as a killer by people whose evil acts are so obvious that all can see them — particularly the remorseless killing of African American and handicapped babies in the womb, which is ardently defended and supported by so-called “progressives”. One can only hope that history — and God — will judge them with more mercy and fairness than they are judging Columbus.

Christopher Columbus was not perfect. The values of his time were not as “enlightened” or “liberal” as ours. But he was undoubtedly one of the great men of history. Even to consider removing a statue honoring Columbus would be an act of historical sacrilege, a denial of the very roots of our society, and a crime against our heritage.

Dangerous Signs of the Times

Thursday, August 3rd, 2017

We have been fighting against the legalization of assisted suicide for years, and we have been constantly warning about where that would lead — to direct and involuntary euthanasia of vulnerable people. We have been consistently accused of lying, scare-mongering, and exaggerating. But in the past few weeks, we have seen increasingly dangerous signs of the times that have confirmed all of our fears and warnings about the dangers of opening the door to euthanasia.

The first sign was the terrible tragedy of the Charlie Gard case. Charlie was an infant in the United Kingdom who had a very grave genetic disorder that was growing progressively worse. He was hospitalized and he was breathing with the assistance of a ventilator. His parents wished to take him out of the hospital and bring him to other hospitals for an experimental treatment that other medical teams thought had a chance of reversing the course of Charlie’s condition. Astonishingly, the doctors and the hospital resisted that request, and the case went to court. Equally astonishingly, the UK courts ruled that Charlie’s parents could not transfer him to another hospital, nor were they even allowed to bring him home for his last days. He died in the hospital after doctors removed the ventilator, against the parents’ wishes.

Prof. Charles Camosy, a theologian who specializes in medical ethics, has written a penetrating analysis of the case, and some of what he said is worth quoting directly (although you should read the whole thing). Commenting about the court’s decision, he noted that:

Implicit in this judgment is the view that the harm that would have been done to Charlie by his parents was so obvious and of such magnitude that the decision had to be taken out of their hands… Those who held power over Charlie decided that his life was not worth living. They reached this judgment on the basis of his expected mental disability. They denied him treatment, and ordered his ventilator removed, not because of the burden of the treatment, but because of the burden of his life. In a cruel act proposed by doctors, approved by courts, cheered by the press, and blessed by certain high clerics, Charlie Gard was euthanized. It was euthanasia by omission, but it was euthanasia all the same.”

This is chilling indeed, and it is a frightening sign of where medicine is heading. Similar judgments about “quality of life” and “medical futility” are being made in secret all the time by doctors against the desires of patients and even without their knowledge. The result is an unknown number of cases of passive euthanasia – death caused by omitting treatments that would extend life. Legalizing assisted suicide would bring these decisions out of the shadows, and would inevitably increase the number of cases like Charlie Gard’s.

This is not fear-mongering, it’s current events. All we have to do is look at studies of the Netherlands that have recently come out. One study came out in May from the Dutch Regional Euthanasia Commission, the government agency responsible for oversight. The other study was published in the prestigious New England Journal of Medicine just last week.

The NEJM study found some alarming things. Doctors report that 4.5% of deaths in that nation are due to euthanasia. That is a staggering number. If it were in the United States, it would represent almost 120,000 deaths per year and would be the sixth leading cause of death – more than Alzheimer’s, diabetes, suicide, murder or drug overdoses.

Even  more alarming is what was found in the official Dutch study. They reported that euthanasia cases aren’t limited to the superficially sympathetic cases of people with terminal diseases. Instead, there was an increasing number of psychiatric and dementia patients who were being euthanized– 141 in 2016 compared to only 12 in 2009 – and that 431 people had been euthanized without their explicit consent. This is so shocking that one of the leading euthanasia supporters accused the Euthanasia Commission of concealing that “incapacitated people were surreptitiously killed,” and even went so far as to say that “executions” were taking place.

None of this should really be a surprise. As Cardinal Willem Eijk of Utrecht commented, “When one breaks the principle that human life is an essential value, one steps on the slippery slope. Dutch experiences teach that we will be confronted time and again with the question whether the ending of life shouldn’t also be possible with less serious forms of suffering.” The principal author of the NEJM study also saw what was going on: “When assisted dying is becoming the more normal option at the end of life, there is a risk people will feel more inclined to ask for it.”

We cannot afford to ignore what is happening around the world, and we must stop it from happening here. We are talking about the most vulnerable lives – handicapped children, old people with chronic problems, mentally ill people. Health care professionals are already being confronted with the question of whether their lives are worth living. If we allow assisted suicide, it is certain that doctors will become accustomed to doing it and will start recommending it, the secret euthanasia that is already happening will become more mainstream and open, and more people will start asking for it.

Prof. Camosy makes a crucial point that we have to focus our attention on:  “Nothing moral follows from medical facts. Judgments about whether or not treatment is worth pursuing will have to be made. And physicians, even with perfect medical knowledge, are not the best persons to make them.” I would add, neither are the government or insurance companies.

These decisions must be made by families and patients, and we in the Church need to do much more to make sure that they are informed by the truths of Church teaching about the sanctity and dignity of every human life, regardless of condition or capability.

Moral Guidance on Health Care Reform

Tuesday, June 6th, 2017

The United States Senate is currently struggling to draft a health care bill to replace the Affordable Care Act. The House previously passed a bill, but the Senate has essentially gone back to the drawing board and is trying to develop their own unique bill. Both in its politics and policy details, the process of doing so is mind-numbingly complex and difficult, and the results will have a tremendous effect on the lives of all Americans.

But the moral aspects of this kind of legislation are equally momentous in their importance. All legislation involves moral decisions about what to permit or prohibit, what to promote or discourage, what to spend money on and what to defund. Legislation like a health care bill is particularly fraught with moral dimensions that no “scoring” from the Congressional Budget Office can measure.

This is where our legislators need to listen to the advice of our Bishops, who have been examining this health care reform process for decades, and who have essential moral guidance to offer. In a letter sent to the Senate on June 1, the bishops who chair four major USCCB committees (including Cardinal Dolan, the Pro-Life chair) offered a clear moral template for any health care bill. As always, the bishops expressed their concern for how legislation would affect the most vulnerable people, including low-income people, immigrants, and the unborn.  But the principles they laid out are even broader:

  • No Affordable Care Act repeal effort should be undertaken without the concurrent passage of a replacement plan that ensures access to adequate health care for all.
  • Respect for life: No health care reform plan should compel us or others to pay for the destruction of human life, whether through government funding or mandatory coverage of abortion. Long-standing “Hyde Amendment” protections must extend to any relevant health care plan in order to prevent federal funding of abortion and not as a temporary fix or future promise. Federal resources must not be used to assist consumers in the purchase of health care plans that cover abortion.
  • Access for all: Reform efforts must begin with the principle that health care is not a privilege, but a right in keeping with the life and dignity of every person. All people need and should have access to comprehensive, quality health care…  
  • Truly affordable: Many lower-income families simply lack the resources to meet their health care expenses. The Bishops have serious concerns about structural changes to Medicaid that would leave large numbers of people without the coverage they now rely upon, including those who gained access to care as part of the Medicaid expansion that came with the ACA. Reform also ought to address barriers to affordability for those living above the poverty level but who are still working hard to make ends meet.
  • Comprehensive and high-quality: Health care is much more than mere insurance. Other aspects of health care policy require the attention of policy-makers: … focus on the maintenance and promotion of good health as well as treat disease and disability for all people, regardless of means; Incentives for preventative care, early intervention and maintaining a reasonable choice of providers… encourage individuals to develop a sense of ownership over decisions that affect their health and well-being; encourage people to enter medical professions, and which foster more humane and responsive relationships between doctors and patients…
  • Honoring conscience rights: Congress should expressly provide conscience protections for those who participate in any way in health care. Such protections should extend to all stakeholders, including patients, insurers, purchasers, sponsors, and providers.

Crafting complex legislation is not a pretty process, and inevitably involves many political compromises and imperfect solutions. But health care is too important a human right to be left entirely to amoral market forces, or to the often-immoral intrusiveness of government regulations. Either approach values ideology over people, and endangers lives of vulnerable people. One need only think of the massive funding and support provided to the abortion industry, regulations that violate religious freedom and seek to coerce cooperation in immorality, or the heartless attitude of insurance companies that will pay for suicide drugs but not for chemotherapy.

Congress has a difficult task in front of it. But our bishops have given much-needed guidance, and we should urge our legislators to heed it. The common good of our society, and social justice for all, is too important to leave to a debate that focuses only on political and economic concerns, and not on morality.

A Religious Liberty Failure

Wednesday, May 10th, 2017

It is often difficult to know what to make of this very strange Administration. Every day seems to bring a new self-generated controversy and it is often difficult to discern what is going on and why.

Sometimes, though, it is very clear what has happened — or more accurately, what has not happened. The case in point is the alleged religious liberty executive order issued last week to great fanfare. It was a splendid photo op, with the President surrounded by Catholic prelates, the Little Sisters of the Poor, and other religious leaders. The President spoke wonderful words about how committed our government is to defending religious liberty. There were smiles all around and much applause.

The problem is that the executive order is virtually useless, it accomplishes nothing, it misses an opportunity to implement important reforms, and it delivers nothing more than vague promises of possible future actions at undefined times.

The order contains six paragraphs. The first contains hortatory language about the importance of religious liberty, which is virtually indistinguishable from proclamations issued by the prior Administration. The last two paragraphs deal with legal procedure that has no particular importance. The middle three paragraphs is where the substance is supposed to be, but isn’t.

Paragraph 2 purports to grant legal protection to the free speech of religious non-profits and churchs that are incorporated under section 501(c)(3) of the Internal Revenue Code. It directs the Treasury Department not to enforce a legal provision known as the Johnson Amendment, which prohibits those organizations from engaging in partisan political activity such as open endorsement of candidates. Opinions differ about the Johnson Amendment. I happen to think it’s a good idea but many others disagree. The problem is, though, that the government has virtually never enforced that provision and the President can’t do anything to change the law itself — it can only be repealed by an act of Congress. Future administrations could easily begin enforcing the rule at any time — which would be particularly dangerous for any organization that foolishly relies on this executive order and begins engaging in partisan politics.

So this part of the executive order is actually completely devoid of any real content. It’s merely a promise not to do something that isn’t being done, without preventing it from being done in the future. Hold your applause.

Paragraph 3 is a particularly frustrating diappointment to those of us who have been battling over religious liberty the past few years, especially over the HHS contraception and abortion mandate. That is the cause of voluminous litigation that culminated in a directive from the Supreme Court that the government find some way to accommodate the religious liberty concerns of religious non-profits who object to the mandate. This executive order directs the relevant agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections”.

“Consider”? That’s all? Remember, you can’t overturn statutes or regulations with a mere executive order, so the HHS mandate and its offensive non-exemption continues to be the law of the land. But the President, with the stroke of a pen or even with a mere oral order, could easily have directed the Justice Department to immediately settle all the litigation by granting the religious non-profits the same full exemption that is enjoyed by churches, and further directing the relevant agencies to develop regulations that would formalize that settlement into law. That would have resolved the HHS mandate controversy completely and it would have established a strong precedent for further conscience protection laws and regulations.

This is a tragic missed opportunity, and it directly calls into question the Administration’s competence and/or its sincerity about protecting religious freedom. It is a complete and absolute failure to follow through on explicit campaign promises — somehave even called it a betrayal.

Paragraph 4 is hardly worth mentioning. It directs the Attorney General to “issue guidance interpreting religious liberty protections”. This won’t come any time soon, since virtually no sub-cabinet Justice Department officials have been confirmed by the Senate and there isn’t even a nominee for the head of the crucial Civil Rights Division. And in any event, “guidance” does not have the same force of law as regulations or statutes, it does not have to be accepted by the courts and it can be overturned at any time by this or any future Administration. So this is another post-dated check for something that may be delivered someday by someone. Yawn.

This much bally-hooed executive order is a major failure. It provides no actual protection for religious freedom. It does nothing to change the law. It does nothing to reverse the hostility of the prior Administration towards those with traditional religious beliefs. It does nothing to protect religious contractors from discrimination by government agencies that disapprove of their beliefs. It is such a non-starter that even the ACLU has decided that it’s not worth challenging in court.

Many people, particularly religious conservatives, supported the President because they rightly feared the consequences for religious liberty if Hillary Clinton had been elected. But the President’s executive order uttely fails to deliver on expectations for imporoved protection of religious liberty. All we can hope is that the Administration will eventually get its act together, appoint good people to crucial executive positions, and implement concrete reforms to statutes and regulations that will give genuine and lasting protection to people and organizations of faith. Meanwhile, despite all the fanfare in the Rose Garden, the very real threats to religious freedom remain.

Failing the Dred Scott Question

Friday, March 24th, 2017

As I have already written, I have great concerns about some of the answers given by Judge Neil Gorsuch during his confirmation hearings. I consider his originalist legal philosophy to be perfectly sound and likely to produce decisions that are favorable to the cause of human life. But when asked the most important question, his answer was an utter failure.

One of the Democratic Senators, Richard Durbin, was questioning Judge Gorsuch about a book he had written about assisted suicide and euthanasia. In the book, Judge Gorscuh proposed a principle that could be used to justify laws against suicide and euthanasia, which he called the “inviolability-of-life principle”:  “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

Senator Durbin then asked the judge how he could square that principle with legalized abortion. This exchange then took place:

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment—and that book explains that..

Durbin: Do you accept that?

Gorsuch: That’s the law of the land. I accept the law of the land, Senator, yes.

I appreciate Judge Gorsuch’s respect for precedent and the original meaning of the Constitution. But I wonder if he realizes that in his answer, he was echoing one of the worst possible Supreme Court precedents — the infamous case of Dred Scott v. Sandford. In that decision, the Court held that, based on their reading of the original meaning of the Constitution, African-Americans were not “persons” within the meaning of the Constitution:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect…. [and the provisions of the Constitution] show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

In a concurring opinion, one of the Justices said this:

The correct conclusions upon the question here considered would seem to be these: That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person.

Is that really the kind of precedent that we want Supreme Court justices to respect?

What’s especially disheartening about Judge Gorsuch’s answer is that he didn’t have to say that at all. He could have easily deflected the question — as he did with pretty much every other substantive question — by saying that the issue of the personhood of unborn humans was likely to be litigated before the Court and that it was thus inappropriate for him to comment. The fact that he did give a substantive answer means that he considered the non-person status of unborn humans to be so clearly and finally settled that it is uncontroversial.

I still think that Judge Gorsuch should be confirmed, and that he will likely rule positively on incremental pro-life regulations of abortion. But any hope that he would overrule Roe v. Wadeappears to be a mirage.

The most important threshold legal question in any case is whether someone can count on the protection of the law to defend their basic human rights. Judge Gorsuch failed that question.

Our Government is the Enemy of Religious Freedom

Wednesday, August 24th, 2016

Throughout American history, people have depended on our government to protect our basic liberties — our “unalienable rights”. Our Declaration of Independence was based on the premise that the purpose of government was to secure these rights, and that any government that sought to extinguish them was unjust and should be replaced. Our Constitution likewise contains numerous provisions that are specifically designed to protect individual liberties — especially the First and Fourteenth Amendments.

In recent years, it has become more and more clear that the current Administration harbors a settled hostility to religious liberty and freedom of speech, and a deep commitment to coercing compliance with their ideology of sexual liberation and gender theory. The history of the HHS contraception mandate shows the relentless commitment of the Administration to coerce all employers, including religious organizations, to offer insurance coverage for procedures and medications that are offensive to their religious beliefs, like abortifacient drugs and devices.

Earlier this year, the Supreme Court sent a very clear message to the Administration that they wanted them to come to some kind of compromise over the HHS contraception mandate. But rather than heeding that suggestion, the Administration has instead intensified its assault on religious liberty.

In May, the Department of Health and Human Services issued new regulations that are astonishing in their breadth and daring. The regulations rely on an interpretation of the term “sex” in current anti-discrimination laws, and stretch that clear term to encompass “gender identity” — which the regulation defines as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female”, which would even include people with “non-binary gender identities”. A definition that includes so much is no definition at all — it is hopelessly broad and vague, and ultimately incoherent. But that is gender ideology at its heart.

The regs go on to require every doctor, hospital and other health care entity that receives federal funds (e.g., Medicare) — in effect, virtually every single health provider in the US —  to cover all procedures and interventions related to a person’s “gender transition”. Just to be clear, that means medical procedures like massive doses of hormones and the removal or mutilation of health body parts (i.e., hysterectomies, castration, penectomies, mastectomies, plastic surgery to create fake sex organs, etc.) — all so that a man can pretend he is a woman, and vice versa. This coercive mandate will override the medical judgment of a doctor that such acts are not medically necessary or appropriate, and they permit no exceptions based on religious or moral values.

It gets even worse. The regs also interpret the notion of “sex discrimination” to mean that a health provider cannot refuse to perform abortions, and must cover abortions and all those “gender transitioning” procedures in their health insurance plans.

All of this was done through the administrative law process, which is an arcane and undemocratic way to make law. Instead of having a bill passed by both Houses of Congress, all this requires is a regulatory agency plublishing proposed rules, allowing people to comment for a short time, and then promulgating whatever rules they wish. No public hearings are needed, so the entire process is hidden deep in the pages of a massive publication called the “Federal Register”, which no normal person can read and understand (even lawyers, who are far from normal, have a hard time). It is extremely difficult to overturn regulations, because our courts have abandoned their duty of constitutional oversight and give extreme deference to the agencies putting forth the regs.

Our government has been increasingly using this undemocratic process to impose their ideology on the nation. In fact, they go even further by issuing “guidances”, which are purportedly not binding but which in fact are just as coercive as regulations and statutes.

A lawsuit has been filed by the Becket Fund for Religious Liberty, representing a number of states, religious health institutions, and health professionals. If the government follows its previous practice, they will fight tooth and nail against any compromises, and will never concede any ground. No religious objection is ever enough for them, and no demand by gender ideologues is too much. That is the regime under which we live.

In the Declaration of Independence, the Founders stated clearly that when a government no longer secures basic rights, and instead seeks to usurp or repress them, it can only be described as a tyranny. Our government may not be comparable to the wicked despotisms around the world, but it has clearly crossed a line with its relentless attacks religious freedom.

Opposing Assisted Suicide in the Courts

Tuesday, January 5th, 2016

The battle to defend life against the Culture of Death has many fronts.  The most prominent, of course, is the defense of the unborn child in the womb.  But increasingly, we must turn our attention to the end of life, where the weak and vulnerable are the targets of attack.

The movement to legalize assisted suicide has been growing in strength here in the United States.  It has already advanced in Europe, and even in Canada.  But its message of despair is getting more traction here as well.  Only a handful of states have bought the serpent’s message so far, but last year California fell, and that gives the movement considerable momentum.  They are turning their attention — and sending their extremely well-funded lobbyists — into a number of other states, including New York.

The battle over assisted suicide will soon be joined in our State Legislature.  Two bills are pending there, and we expect this legislative session to be the opening round of a long struggle.  I laid out the basic arguments in an earlier blog post.

But the enemies of life are also seeking to obtain their goal in the cheap and easy way — by going to court.  Last year, a group of advocates and patients filed a lawsuit in New York State court in Manhattan, seeking to have our laws against assisted suicide overturned.  Their argument is based on a spurious constitutional argument.  The Attorney General of New York has the duty to defend our law, which gave us some trepidation at the start of the case — the AG is staunchly pro-abortion, and no friend of the cause of life.  But his office did a good job defending the law in the lower court, and were victorious.  But the case is now before an appellate panel, and will eventually be decided by our Court of Appeals.

The time had come for the Church to enter the field.  So, the New York State Catholic Conference has filed an amicus curiae brief, explaining the compelling state interest in banning assisted suicide, and pointing out the dangers to religious liberty if the courts were to overturn the ban.  I was the principal author of the brief, assisted by my colleague Alexis Carra.  If you’re interested in reading the whole brief, you can download it here.

The argument in the brief focuses primarily on the reasons that we have laws against assisted suicide.  This is an important part of defending the current law — depending on the legal standard that the court applies, there must be either a “rational basis” for the law, or it must advance a “compelling government interest”.  I have found that in many cases, there haven’t been sufficient explanations of the moral and religious reasons for a law, or for a request for an exemption from a law.  I’ve seen this in litigation involving abortion, suicide, and religious liberty.  All too often, the argument is presented in a conclusory or perfunctory way.  This has always struck me as a terrible missed opportunity to explain to judges (many of whom have no understanding or sympathy for religious institutions) why these issues matter so much to us, and why we feel so strongly about them.

Another reason for making these arguments is so that they are out there in the public square.  Defenders of traditional moral standards are typically put on the defensive, which allows our adversaries to set the agenda.  It’s also a problem that we frequently make our arguments purely in secular terms, which misses the chance to do some indirect evangelization.  Even though I often like to say that all I care about is winning, in reality all I really care about is spreading the Gospel of Jesus Christ by whatever means available.

So, the battle is joined in yet another forum.  No rest for the defenders of life.

Lawless and Arrogant Judges

Wednesday, December 2nd, 2015

I frequently refer to judges as our “Black-Robed Platonic Guardian Rulers on the Courts” because of the consistent record of the modern judiciary to invent new laws based on their own policy preferences.  They often run roughshod over the proper role of courts in a constitutional republic, and particularly over traditional moral values that have been enshrined in law and culture since time immemorial.

They have arrogated to themselves the ultimate authority to decide the laws of our nation, and are unaccountable to anyone for the decisions that they make.  All one needs to do is look at the arrogant and imperious decisions in abortion cases (particularly Planned Parenthood v. Casey) and the redefinition of marriage (Obergefell v. Hodges) for all the evidence you need to see what I’m referring to.

Usually, judges are careful not to let on about what they’re up to.  Very few will actually admit to making momentous decisions based on their own preferences, or to disregarding the plain text and meaning of the Constitution when it stands in the way.  This is part of an implicit social contract in our legal and political establishment — everyone knows what is going on, but few will pull back the curtain.

But every so often, the mask slips.  Take the case of Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.  Judge Posner is one of the most respected jurists of our generation, a brilliant scholar of law and economics and a public intellectual who has written on a wide range of issues.

He is also an astonishingly arrogant Black-Robed Platonic Guardian Ruler on the Courts.  In two recent public statements (on in the Yale Journal and the other in a speech at Loyola Law School), Judge Posner made some breathtaking statements about his view of the Constitution, the role of judges, and how he makes judicial decisions.  Consider:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

And again,

Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.

This, from a judge whose position was created in that very same Constitution in order to decide cases and controversies that arise pursuant to that very same Constitution, and who swore to faithfully discharge his duties under the very same Constitution.

Not that this seems to matter much to Judge Posner.  When asked about his oath of office, this is what he had to say:

The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.

When solemn oaths are deemed insignificant, one can only wonder what kind of justice is meted out in his courtroom.  Actually, we don’t have to guess, because Judge Posner has made it clear:

My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.

In other words, law with the law left out, nothing more than ad hoc seat-of-the-pants rulings based on his idiosyncratic view of what is common sense on any particular day.  Of course, this should really come as no surprise from a man who has expressed his great admiration for the Friedrich Nietzsche, the moral nihilist and apologist for the powerful dominating the weak.

This kind of cynicism, unfortunately, is the mindset of far too many lawyers and judges in the United States.  When I was at Harvard Law School, the professors openly told us that there was no objective moral content to the law, but that it was just a vehicle for powerful people enacting their political preferences.

A nation ruled by such people is no longer a functioning democracy or republic.   It is a despotic judicial oligarchy.