02 April 2016

H.B. 1523


There has been a lot of talk about Mississippi House Bill 1523 this week. And most of that talk has been frankly wildly ignorant. As is so often the case when it comes to legal analysis in journalism (particularly when it comes to controversial topics, like law and religion) it appears to be that none of those reporting on the law, or expressing their opinion about the law, actually has the least aptitude for reading law. Their comments almost suggest that they haven't bothered to read the law — or at least not carefully. So I'd like to try to straighten things out, but from the outset, let it be clear that I do NOT support this law, and were I in the Mississippi legislature, I would NOT vote in favor of it.

Let's start from the top. The title given to the bill, introduced in Mississippi House of Representatives, is the 'Protecting Freedom of Conscience from Government Discrimination Act'. (I'm just going to refer to it as the Act.) The Act takes the standard form of many discrimination laws: describe what personal characteristics one may not legally discriminate against; define what acts are deemed to be discriminatory; and to lay out the legal recourse and remedies available when such discrimination against such persons occurs. The last bit is pretty standard, so I only want to discuss the first two items.

The Act is designed to protect people who have 'sincerely held religious beliefs or moral convictions' regarding sexual ethics. Namely, the Act prohibits discrimination against someone who holds any of three different beliefs (and here I'll just quote the Act):

(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

In short, beliefs against same-sex marriage, fornication and adultery (whether heterosexual or homosexual), and transgenderism. None of these are particularly bizarre and fall within the traditional doctrines of many religions — particularly Christianity, which undoubtedly what the legislature has in mind. Item (b) is probably the most severe belief, but a 2015 Gallup poll showed that 29% of Americans do hold that belief (though other polls show that Americans aren't very good at living up to that belief).

So that's our first element: the class of people protected by this Act from discriminatory acts is defined as those who sincerely hold certain religious beliefs about sexual ethics, which, even if not mainstream, are not unusual or departures from traditional doctrine in certain religions.

That brings us to the second element, which is the element that most commentary, it seems, is either not bothering to read or is not comprehending what we read. This element is laid out in Section 3 of the Act and is comprised of eight sections. Seven of these eight sections describe actions by 'the state government', and even that eighth section concerns actions by state employees, as we'll see.

So the first observation to make is that this does not affect discrimination by one private party against another private party who holds such beliefs. That is, if I run a business and am looking to hire you, but I find out that you oppose same-sex marriage, I can refuse to hire you, and this Act does NOT give you any recourse. You may have recourse under other laws, however. Contrariwise, if I refuse to hire you because you SUPPORT same-sex marriage, this law does NOT give me permission to do so, nor does it override any existing recourse you may have to sue me for discrimination.

So let's now proceed down the list of acts which the Act defines as unlawful discrimination. I've tried to summarize each part as concisely as possible without missing nuance, but if you want to skip to the summary, you can rejoin with the paragraph beginning with, 'So, where does this get us?'

Subsection 1 concerns the relationship between the state government and religious organizations. In short, the state may not discriminate against religious organizations because they refuse to participate in a marriage, refuse to hire someone, or refuse to rent their property in a way that is consistent with their religious beliefs. For example, they can choose not to perform or host a marriage between a couple who have been living together, choose not to hire a transgender person, and choose not to rent their facilities to a gay men's choir.

Subsection 2 concerns the relationship between the state government and religious organizations providing adoption and foster care service. The state may not, for example, refuse to cooperate with a religious organization because it does not offer those services to a same-sex couple looking to adopt.

Subsection 3 concerns the relationship between the state government and potential adoptive or foster parents. The state government may not, for example, refuse to grant an adoption to parents who hold religious beliefs against same-sex marriage is immoral and intend to raise their child in that religious belief.

Subsection 4 concerns the relationship between the state government and those providing professional treatment. The state may not, for example, require a surgeon to perform sex reassignments. The Act DOES, however, explicitly forbid someone from denying visitation or power of attorney in healthcare decisions.

Subsection 5 concerns the relationship between the state government and those providing services for marriages. The state may not, for example, require a photographer to photograph a same-sex wedding. This is probably the most obviously controversial section, since we've already seen cases along these lines in several states in regards to bakers, florists, &c.

Subsection 6 concerns the relationship between the state government and those providing 'intimate facilities'. The state may not, for example, require a gym to have a gender-neutral locker room.

Subsection 7 concerns the relationship between the state government and its employees. Namely, it may not discriminate against them for speech or expressive conduct consistent with their protected religious beliefs, SO LONG AS such speech is outside of the workplace and course of performing work duties OR, if in the workplace, it is, in short, workplace-appropriate. For example, you would be permitted to have a discussion in the lunch room about sexual ethics, but you couldn't harass a LGBT colleague.

Finally, subsection 8 permits a state employee who has the authority to license marriages to recuse themselves on the basis of religious beliefs, but ONLY IF they 'take all necessary steps to ensure' that a 'legally valid marriage is not impeded or delayed'.

So, where does this get us? Well, I think the first thing to note is that the Act emphatically does NOT allow owners of businesses to discriminate against potential employees clients because they are LGBT, with one exception in subsection 5: when it would involve their business in an actual marriage celebration. We'll come back to that exception for a second.

This is probably the one point that most commentators are completely misunderstanding. I have read at least half a dozen articles criticizing the law because it would, they claim, allow someone to be fired because they are gay; or allow a mom-and-pop store to refuse to hire someone because they are engaged in a sexual relationship with someone not their spouse; or allow a restaurant to refuse to serve someone who is transgender. The act permits NONE of that. Any existing laws that prohibit such acts remain completely untouched by this law.

There are acts which this law DOES effectively permit, however, such as the wedding photographer cliché, which may be a tough one for a lot of reasons. After all, there aren't many instances where we allow people to refuse services generally available to the public. On the other hand, marriage is for some literally a sacred matter and thus services related to it can take on a character unlike other services generally offered. More practically, I'm not sure why one would want to hire someone to service an event as important as one's wedding, knowing that person is being compelled to do so against their beliefs. But I think there is plenty of room for discussion on that, even if the right answer turns out to be obvious.

More to the point, however, this law decidedly does not govern relationships where the possible conflict in sexual ethics between the parties would be, at best, tangential. Let's definitely have a conversation about those points at which our society's pluralist perspectives on sexual ethics actually come into conflict. Let's find the best policies to address those conflicts. Let's find ways to learn how to respect those differences in our deeply held convictions. In this case, I don't think this law is one of those ways — and I'm sure many readers of this will also object to some or all of the law for their own reasons.

But please, let's not misread, misconstrue, mischaracterize, and jump to conclusions about laws. If you don't understand everything that a law is actually saying, assume the best, rather than the worst, until someone who DOES have that aptitude can help you yourself better understand. (Assuming the worst probably only indulges your own prejudices.) And while you're at it, ask a second someone who also has that aptitude to give you a different perspective. People independently educating themselves about law on the Internet is about as liable to error as people independently educating themselves about medicine on the Internet. Unfortunately, while the latter is likely to only harm yourself, the former is likely to harm society.

30 March 2016

Little Sisters Order


The Supreme Court handed down this rather interesting order yesterday. A bit of background: this order regards the so-called 'Little Sisters' case currently before the court (Zubik v. Burwell). The case was raised by a number of non-profit organizations (charities and universities, mostly) affiliated with the Catholic church, challenging the existing manner by which their employees are eligible to receive coverage for contraception under Affordable Care Act–related regulations.

While churches themselves are not required to provide coverage for contraceptives, the arrangement for non-church religious organizations is different. Instead, such organizations must provide a form stating their objection to providing such coverage. That form then authorizes and obligates their insurance provider to contract with the federal government to provide said contraceptive coverage to the employee. In the view of these organzations, even though the organization is not paying for that coverage, that authorizing document still makes them morally culpable under Catholic moral theology. So they made a claim under the Religious Freedom Restoration Act, arguing it allows them to be exempt from this aspect of the ACA because of the burden it creates for their religious practice.

Oral arguments were heard in the case just last week, and this order pretty clearly implies that the Court already realizes it's split 4-4. In the case of a split court, the decision in the court below would stand. In many cases, this isn't a big deal. In this case, however, it is: the reason this case is before the Court in the first case is because different circuit courts have decided similar cases differently. So a split court would have all of those different decisions stand in their respective circuits, the result being different interpretations of the law in different parts of the nation, depending on which circuit covers a particular state.

So with this order, the Court is trying to get the parties to effectively resolve the issue themselves by reworking the existing regulations to both give the government a way to provide contraceptive coverage and for the organizations to be relieved of the moral quandary they believe they are in. Between this order and oral arguments last week, I would more specifically speculate that Breyer is looking for a way to join Roberts, Thomas, Kennedy, and Alito to rule in favor of the religious organizations, but also give the government what they want.

This is why the Court needs a ninth member. Earlier this week the Court already handed its first 4-4 decision since Scalia's death, and already we almost have a second. There are several more cases this term which could be headed to the same fate. While such decisions are not the end of the world, and while they provide endless opportunities for me to enjoy analyzing the complexities which may result, they're something to avoid, because those complexities are unnecessary and an impediment to the workings of justice.

ORDER

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.

The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing.

The briefs, limited to a single brief 25 pages in length for petitioners, and a single brief 20 pages in length for respondents, are to be filed simultaneously with the Clerk and served upon counsel for the other parties on or before April 12, 2016. Reply briefs, limited to a single brief 10 pages in length for petitioners and for respondents, are to be filed simultaneously with the Clerk and served upon opposing counsel for the other parties on or before April 20, 2016.

23 March 2016

Source-Checking


This, dear friends, is a nearly perfect example of why you should fact check even those — nay, especially those — media outlets you are predisposed to agree with.

I, and most of those I know, can agree that Donald Trump's plan to build a wall against Mexico is a completely ridiculous proposal. There are any number of reasons to oppose such a ludicrous idea. This weekend John Oliver ran down a number of them, including the patently obvious: that, contrary to Trump's allegation, immigrants are not all criminals. Among the supposedly authoritative sources he cited to make his case was an article by Charis Kubrin in The Oxford Handbook of Criminological Theory. It's not your fault if you didn't catch the citation, since the book's title was flashed on the screen for all of half a second.



The text he cited read, '. . . a substantial literature consistently finds that immigrants are less, not more, crime prone than their native-born counterparts.' For those familiar with academic language, that word 'literature' ought to indicate that this is not an actual argument but rather what is referred to as a 'literature review': i.e., a brief summary, at the beginning of an article, of current scholarship in the field — often preceding a refutation of, or disputation with, said scholarship. Though the title was barely made visible, I happened to recognize the graphic design of the book's cover, so I decided to check the context.

Returning to the source, one finds that the passage cited was indeed part of the article's introductory literature review and that the article was actually throwing up a caveat to common wisdom, arguing that, though we *believe* these things to be obviously true, and though there is 'substantial literature' arguing that point, the actual empirical evidence on the broader sociological impact is far from conclusive. To wit, 'There is a comparative shortage of research on the macro-level relationship between immigration and crime rates, including studies conducted at the neighborhood, city, and metropolitan levels. Critical questions . . . have yet to be fully addressed. This is problematic because immigration is an aggregate-level phenomenon whose effects may extend far beyond the argument that immigrants are more crime prone than nonimmigrants. In fact, there are good reasons to suspect that immigration affects demographic, economic, and social structures in ways that will impact overall crime rates, aside from any differences in the individual-level offending of immigrants and natives.' The entire article is a call for better research, not a statement of what research has already found! It is nearly the exact opposite of what Oliver was citing it for!

Lest someone misunderstand, I am not at all arguing that immigrants do cause an increase in crime. I am merely pointing out that the media often twists and misconstrues its sources, *especially* when they are academic sources. With academic sources, this is usually not born of malice but of misunderstanding, combined with a desire to muster as many supporting quotes as they can on a deadline.

The bottom line is this: CHECK YOUR SOURCES! But more importantly, CHECK *THEIR* SOURCES! Even John Oliver can be wrong.

17 March 2016

In re: Garland


The following is a letter that I will be sending to the Republicans on the Senate Judiciary Committee. Perhaps no one will read it, and probably no one will act on it, but this is one of the things I care about enough to go beyond ranting to friends and to petition those in government — one of the important avenues for civic action, available to everyone in a representative democracy.

Dear Senator,
I am writing in regards to the recent nomination of Chief Judge Merrick Garland of the Court of Appeals for the D.C. Circuit to fill Justice Antonin Scalia's seat on the Supreme Court. I ask that you exercise your influence within the Senate and the Senate Judiciary Committee to see that Judge Garland receives a fair hearing. You may ultimately decide not to confirm the nomination after such hearings, but I believe both that he deserves to be seriously considered and that the People of the United States deserve a substantive discussion about Judge Garland, informed by that hearing, from the President they elected in 2012 and the Congress they elected in 2014.

Justice Scalia was my favorite sitting justice on the Supreme Court. Especially as I attended the NYU School of Law, his jurisprudence had great appeal, in particular his views on judicial restraint and advocacy for judicial humility, and his deference on political matters to the political branches of government, distinguishing the political from the legal. Scalia's influence on American law was immense and his death leaves an enormous vacuum at the Court. I have already dearly missed his voice when listening to oral argument and his witty pen when reading court opinions and dissents.

I am concerned, however, with the decision to rebuff, at the threshold, any nominee put forward to replace him in 2016. I do agree (as would Scalia, I believe) with the argument that the Senate has the right to refuse to hold confirmation hearings as a legitimate means for withholding its consent to a nomination. Per Article I, Section 5, the Senate may set its own rules for procedures, which necessarily includes the means by which it grants or withholds its consent to nominations. The President's argument against this position is incorrect.

But this is not about what the Senate is *in its rights to do*; this is about *what is right* for the Senate to do. There are many things which one has the right to do, but which nonetheless may not be right, prudent, or wise — or even politically expedient. Some Republicans have argued that this decision will avoid exacerbating an already toxic election cycle. But it would seem to me that continuing to resist the President on this matter will do more to fan those flames than going ahead with nomination hearings. Surely you recognize that, as an empirical matter, whether intended or not, Republicans have courted continuous controversy and criticism since first refusing to hold hearings.

Furthermore, this decision effectively denies an appointment to a person who is unquestionably qualified for, and undeniably deserving of, a seat on the Supreme Court and who is well respected by virtually everyone as an exemplary legal mind. In fact, Judge Garland is arguably one the most politically innocuous candidates imaginable in both ideology and merit. He seems to represent a way for the Court's vacant seat to be fulfilled; for a deserving candidate to be elevated to the nation's highest court; and for the nomination process to focus on qualifications and experience, rather than risking a denigrating and toxic battle over judicial ideology.

While the unwritten tradition of not considering nominations in a president's final months may have originally been rooted in a desire to avoid politicization of the nomination process, today in 2016, with this nominee, the reality is that such a refusal is *intensifying* the ever greater politicization of the process. Context matters, and arguing about whether 'they started it' in the past or whether 'they would do the same' if the roles were reversed in a hypothetical future should not determine whether you should act now to stop it in the present.

Will Judge Garland replace Justice Scalia jurisprudentially? Almost certainly not, but appointing such a replacement may not ever be possible, given the highly political nature of judicial nominations currently. Indeed, the appointment of Garland would undoubtedly be a compromise for both President Obama and for Republican Senators. Nevertheless, he is one who is eminently worthy by his credentials — worthy of a hearing, at the very least. Perhaps more so than anyone else, Judge Garland could be a first step in a shift from judicial confirmations based on ideology and politics to judicial confirmations based on qualifications and experience. This would be a positive development for everyone, especially our nonpartisan judiciary.

Therefore, I ask that you reconsider your current opposition to holding hearings on the nomination of Judge Merrick Garland, and I urge you to encourage your colleagues on the Senate Judiciary Committee to do likewise.

04 April 2014

Hobby Lobby & Conestoga Wood


If you've had any exposure to national news outlets over the past year or so, you are probably well aware of the lawsuit that Hobby Lobby, a privately-owned chain of arts and crafts stores, has brought against the United States federal government regarding the Affordable Care Act's (aka Obamacare) mandate requiring that employers include coverage for contraceptives in the healthcare plans they provide to their employees.

If you've paid close attention to the news, you're probably also aware that the case reached the Supreme Court and that this past week the Court heard oral arguments from the parties. Since I got a good deal of positive feedback the last time I did a Supreme Court preview based around oral argument, and since this case is another one that the culture has deemed worthy of paying attention to, I figured I'd once again offer my thoughts on the case.

Background

Factual Background
In March 2010 President Obama signed into law the Patient Protection and Affordable Care Act (PPACA), colloquially known as the Affordable Care At (ACA) or Obamacare. The bill effectively overhauled a large portion of the way that healthcare is funded in the United States and the way that the federal government regulates the industry. The law carved a middle-way and burdened both the government and private organizations with certain obligations in pursuit of a more efficient and affordable healthcare system in the United States. Whether the ACA was good public policy — whether it was too much regulation, too little regulation, good regulation, bad regulation, balanced the public and private obligations well, &c. — I have no interest in writing about and is of no concern here.

What is instead more important about the ACA as regards the cases the Supreme Court heard this past week is the contraceptive obligation. As stated above, it mandates that employers provide in their employees' healthcare plans coverage for a list of FDA-approved contraceptive methods and sterilization procedures.

Because certain religions oppose, to greater and lesser extents, the use of contraceptive drugs and implements, an exemption was carved out for 'religious employers'. For the purposes of the contraceptive mandate, a 'religious employer' is defined as certain non-profit organizations whose core function is religious, such as churches, associations of churches, and so forth. Thus, for example, your local church is fully exempted from the ACA contraceptive mandate.

There is also a certain accommodation provided for 'religiously affiliated' non-profit organizations; in these arrangements, employees still receive coverage for the contraception, but the employer does not pay for the coverage. Most notably, however, for-profit corporations1 are not eligible for either the fuller exemption nor the accommodation. Enter Hobby Lobby and Conestoga Wood.

Hobby Lobby is a national chain of arts and crafts stores which employs over 13,000; Conestoga is a wooden furniture–manufacturer which employs 950. Both are privately held corporations whose majority interest is controlled by members of a single family. Because both also believe that human life begins at the moment of fertilization, they consider any measure which prevents the development of said fertilized egg to effectively constitute an abortion, and thus a violation of their religious beliefs. Four of the methods required by the federal regulation do this, they believe. (As a sort of short-hand, it is to these methods only that I am referring, throughout this article, when I refer to 'contraception'.)

Wishing not to fund coverage for drugs and devices which they believe cause abortions, both therefore wish to be religiously exempted from the contraception mandate. This brings us to the actual legal claim that the two corporations assert.

Legal Background
In the latter half of the 20th century the legal status of religious freedom in the United States was undergoing a number of different shifts. At the center of the changes was the so-called Free Exercise Clause of the First Amendment, which reads that the 'Congress shall make no law . . . prohibiting the free exercise [of religion].' As the government expanded its regulatory framework, and as the religious practices of the people of the United States became more diverse, government and religion clashed more often, and the Free Exercise Clause came to be invoked more frequently.

In 1963 the Supreme Court decided the case Sherbert v. Verner, which established a new standard for how courts should resolve the tension between government regulations and religious freedom, generally erring on the side of religious freedom. As the decades progressed, the 'Sherbert Test' became gradually more restricted, with the Court wanting to err more and more on the side of the government.

The climax of this scaling back of Sherbert came with the 1990 Supreme Court case Employment Division v. Smith. In that case, a pair of Native Americans were fired from their job for having smoked peyote; as it happened, such was part of their religious practice. When they sought unemployment benefits from the state of Oregon, they were denied those benefits because their termination had resulted from an illegal act. They sued, claiming that their free exercise of religion had been infringed by the Oregon law and that they should be held exempt from the law for religious reasons.

The state of Oregon appealed the case all the way to the Supreme Court, and the Court found in favor of the state, effectively overturning the 'Sherbert Test' and replacing it with a new one. The Essence of the decision in Smith stated that someone could not invoke religious exemption from a law which was 'generally applicable' to all persons equally, such as the general ban on peyote usage.

The political response to Smith was univocal. People from all ends of the political spectrum were outraged, believing the Smith decision represented a threat not only to religious minorities but to religions which might later find themselves in the minority. In response Congress passed the Religious Freedom Restoration Act (RFRA, commonly pronounced 'RIFF-ruh'), which was passed unanimously in the House, by a 97-3 margin in the Senate, and signed by President Clinton.

RFRA effectively reinstated a modified 'Sherbert Test' as the one which courts would have to apply when determining whether persons could be religiously exempted from federal laws.

The law stipulates that 'government shall not substantially burden a person's exercise of religion' unless it can both show that applying that burden 'is in furtherance of a compelling governmental interest'2; and is the least restrictive means of furthering that compelling governmental interest.'

A law must pass both of these tests; one out of two is insufficient. A court will also ask basic questions to determine whether the individual's belief is a sincerely held one and whether it truly is burdened by the government, but the main burden is on the government.

What is important to notice here is that RFRA does not, by any means, guarantee that an individual will win a case in which he claims a burden on his religious exercise. Nor does the strength of that belief or the centrality of it to the totality of his religion play much of a role. What is important, for the purposes of RFRA, is two things: is the law in pursuit of a 'compelling government interest'; and could the government have pursued that interest in a manner less burdensome to religious freedom?

In its 20-year history, RFRA has mostly been claimed by individuals belonging to minority religions (e.g., Native American religions, Judaism) or to more radical extremes of major religions. The Hobby Lobby and Conestoga cases are significant not only for the fact that they concern the politically very contentious ACA, but also because they implicate the beliefs of Catholic and mainstream evangelical Christianity.3

Thus, RFRA is the law under which Hobby Lobby and Conestoga have brought a suit. Their legal claim is that enforcement of the ACA's contraception mandate would be burden upon their exercise of religion. Further, they claim that the provision of contraceptives is not a compelling government interest; or, if it is, that there exist means of furthering that interest which would be less restrictive of religious exercise than does requiring private employers to pay for healthcare plans providing such contraceptions.

But the reason why the case is contentious not just politically but legally as well is something you may have already noticed: RFRA refers to 'a person's exercise of religion'. Hobby Lobby and Conestoga are corporations, and not, strictly speaking, persons. In many, many other American legal contexts 'person' has been read to include corporations. This is the legal concept of corporate personhood. Sometimes this inclusion is explicitly written into the law, and sometimes it is inferred by courts. But can a corporation have religious beliefs? Are the religious beliefs of a corporation's members imparted to the corporation itself?

Thus we come to oral argument having surveyed the battleground and understanding the questions presented: more broadly, does RFRA's protection of 'persons' include corporations? In what circumstances? More narrowly, is the ACA's contraception mandate furthering a compelling government interest? And is the mandate the least religiously burdensome means by which the government can pursue that interest? Welcome to the Supreme Court!

Oral Argument

Paul Clement for the Private Parties
First up is Paul D. Clement, representing Hobby Lobby and Conestoga.4 As is common in oral argument, before Clement is able to make much of an statement, he is interrupted by one of the Justices, Justice Sotomayor. She and Kagan exchange questions, presenting what is sometimes known in legal circles as a 'parade of horribles': if we grant these corporations religious exemptions from providing contraception coverage this time, what about all these other 'horrible' cases, like vaccinations or blood transfusions? Wouldn't we have to grant religious exemptions to them, too?

This is a valid issue to raise. Given that it is probably the main question in most of the public's mind, it is probably not surprising that it is the first one raised by the Court. But Clement gives the right answer: this gets to the 'compelling interest' test.

In the case of vaccinations, Clement points out, there is the concern of herd immunity. And so even though his clients argue that the government does not have a compelling interest in requiring contraception coverage, the government may very well have a compelling interest in requiring coverage for other medical services, despite religious beliefs.5 This may or may not be the case — and the Court doesn't really care at this point — but Clement does give the Court an easy way to distinguish members of the 'parade of horribles' from the case before it presently.

One additional thing that I want to point out at this point, is that the 'compelling interest' test is not something new for the judicial system. One worry that I've heard some people express is, 'But how will a court decide all of these cases that might come forth? How can they even decide what to allow an exemption for and what not?' To that worry it should be noted 'compelling interest' is one of the bread-and-butter tests in constitutional law. Courts decide when the government has or doesn't have a compelling interest all the time. It's the test that is used all the time with discrimination law, for example. It's also the same test that the courts have used since 1993 to decide other RFRA cases; the only difference here is the party is a corporation rather than an individual. And so Clement is not presenting the Court with a novel test which it not fully competent to answer, but rather is very accustomed to answering.

The next exchange, initiated by Kennedy, is a subtle discussion of procedure: whether the Court should look at the issue as a constitutional one (regarding the Free Exercise Clause of the 1st Amendment) or a statutory one (regarding the interpretation of RFRA). The question itself is not a terribly important one, but where it leads is a bit more interesting. As the exchange progresses, a number of the Justices question whether Congress could have possibly meant, when they passed RFRA in 1993, for the law to have such a broad-reaching effect as to also include corporations. This broad-reaching effect was a concern earlier but comes to the fore now. Doesn't the unanimity of its passage suggest that it probably wasn't intended to be all that broad-reaching? How could you get consensus for a broad reading?

Clement's response to this challenge is an interesting one. Drawing on the legislative history — that is, the account of the Congressional debates leading up to the bill's passage — of RFRA and associated statutes, he describes that the bills were passed as a sort of inclusive compromise. 'The reason that there was such unanimity behind RFRA in the first place is that efforts to limit it to just certain subclasses, subsets of religious freedom claims, were rejected and everybody in Congress got together and said, "All right, you have some claims you actually want to be vindicated; you have some claims you want to be vindicated. We'll vindicate all of them."'

And so, RFRA was passed with the intent of not delimiting the boundaries, but leaving it to the courts to do so according to the broad terms of the law itself. And again, it's worth pointing out that courts are well accustomed to making these sorts of decisions when interpreting laws and the constitution: what to include and what to exclude. It's what they do every day.

The question then turns to whether for-profit corporations ought to be considered 'persons' for the purposes of RFRA, which only provides protection to a 'person'. As stated above, corporate personhood is not an alien concept. Throughout the United States Code the word 'person' is read to include corporations. Sometimes this is explicit; at other times it is included by reference to the Dictionary Act, which states that, 'unless the context indicates otherwise . . . the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals'. So the question is, does the context dictate otherwise?

This is why Sotomayor asks, 'How does a corporation exercise religion?' And how does one determine what the religious beliefs of a corporation are? After all, is not religious belief a rather personal, individualized phenomenon? To this, Clement points out that courts 'every day deal with issues of trying to figure out what kind of intent or motivation a corporate entity has.' For example, if a corporation is charged with fraud, the law requires proof that the corporation knew that it was being deceptive. And so the corporate structure, corporate statements, and the figures in authority over the corporation are the main touchstones for determining what a corporation's mindset or intent is. Clement is here arguing that the same can be said for a corporation's religious beliefs. See, for example, Hobby Lobby's Statement of Purpose which makes frequent reference to religious beliefs and motivations.

This does lead to an important sidebar that the Justices discuss for a short bit: in a case involving the exercise of religion, a court does not inquire as to how central a particular belief is to a person's religion. It does not ask about the centrality of the belief. It does, however, ask about the sincerity of a belief. In other words, a court will not ask, 'If you were to have to abandon this belief, would it undermine your entire religion?' but a court will ask, 'Do you actually believe this, or are you just making this claim to avoid a legal burden?'

From here almost the entire Court gets involved in a discussion about the economics of the ACA and the contraceptive mandate. The economics matter because RFRA requires a 'substantial burden'. To be perfectly honest, I'm not familiar enough with the taxation scheme6 to comment about the various permutations the Court entertains, but I'll do my best to outline the basic thoughts.

At the most basic level, if Hobby Lobby or Conestoga were to not provide health insurance to its employees, it would pay $2,000 tax per employee. Now, it would be saving on the cost it pays to provide that coverage, which may or may not be more than the $2,000 tax. This is the part I find hard to follow, since I don't know the reliability of the numbers that the various members of the Court and the attorney bat around — whether they are based in fact, are proposed hypotheticals, or are uncertain estimates. In some sense, however, the matter is irrelevant because another aspect of these particular corporations' religious beliefs is the duty to provide for the health of their employees. So the corporations are claiming that the law has put them between a rock and a hard place: either they violate their religious beliefs and provide contraception to which they object; or they violate their religious beliefs in not providing health coverage at all.7

Like I said, I don't fully comprehend the economics of the situation — which is one of many reasons I don't own a business — but I hope I've made clear that part of a court's responsibility is to determine whether the burden imposed by the statute is a substantial one. This is, in fact, the first test which RFRA requires: is there a substantial burden.

The final part of the colloquy between Clement and the Court regards how much third-party interests — in this case, the employee who is not having contraceptive coverage provided by her employer — should be taken into account. At a very simplistic level, one could look to the RFRA and see that it requires no consideration of any third parties. The only entities at stake in the text of RFRA are the 'person' and the government.

But I call that simplistic for good reason, because third parties do come into play in a less obvious way: our good friend, the compelling interest. In fact, third-party interests are often what compel the government to take action. So the question is, how strong are employees' interests in receiving coverage for contraception? Are these third-party interests strong enough to give the government a 'compelling interest' to address the issue?

The analogy that Clement raises is abortion law. The law provides that a woman has a right to an abortion, but the law also allows medical providers from refusing to perform abortions. There is a significant burden on a woman who wants to have an abortion but must visit someone other than her primary provider, but that third-party interest doesn't trump the religious beliefs of the medical provider. And so the Court will need to compare and contrast these two instances to determine whether the distinction is legally viable. Spoiler alert: this will come out in Solicitor General Verrilli's oral argument.

The last tail bit of Clement's oral argument gets to the question of 'least restrictive'. As you'll recall, it is not sufficient for the government to have a 'compelling interest', but RFRA also requires that the government use 'the least restrictive means of furthering that compelling governmental interest'. On this matter the corporations are arguing that, even if the government does have the requisite compelling interest that women be provided contraception coverage, there are other means by which the government might pursue that interest. This is already what the government is doing for religiously affiliated non-profit corporations, by having entities other than the corporation (government, insurance company) pay for the coverage. Why not, Clement challenges, do the same for for-profit corporations?

So endeth Clement's oral argument. We now proceed to Solicitor General Verrilli, on behalf of the U.S. government.

Solicitor General Donald Verrilli for the Government
As with Clement, nearly as soon as Verrilli begins speaking, he is interrupted and the conversation essentially picks up where it ended with Clement: third-party interests. He argues that, when looking at cases like these, courts must take account of how third parties, such as the employees here, will be impacted.

One thing I want to call out, however, is how this particular legal issue is different from how the case is being portrayed in the media. Often one will hear talk about how employees such as Hobby Lobby or Conestoga are 'imposing their religion' on their employees by refusing to provide contraceptive coverage. But that is not how any party — the corporations, the government, the Court — sees the matter. The way they look at the employees is not in reference to religious beliefs, but in reference to their interest in receiving contraceptive coverage. There exists no legal right to be free of someone else's religion. This is an important thing to note.

Justice Alito then turns to the question of how to understand the word 'person'. Verrilli agrees with Alito that just because an entity is a corporation and not an individual does not mean that it cannot bring a Free Exercise claim. After all, a church is a corporation, and we know churches can bring such claims. Similarly, it's not the case that an entity pursuing profit cannot bring a Free Exercise claim, since individuals engaged in business can bring such claims. So why not corporations?

The key for Verrilli seems to be in the combination of the two. Specifically, he argues that a for-profit corporation cannot 'exercise religion' in the sense of how RFRA uses that phrase. So for Verrilli, what is at issue is not whether a corporation is a 'person', but whether a for-profit corporation can 'exercise religion'.

Here we get into the nitty gritty of statutory interpretation, which can be rather mind-numbing to a non-lawyer, so feel free to skip this paragraph, if you wish. On Verrilli's side is the fact that 'exercise of religion' and 'religious exercise' are circularly defined throughout RFRA and related laws. On the one hand, this means that the definition does not obviously require the Court to include situations such as the present cases. But on the other hand, the Court would also be free enough to interpret 'religious exercise' more narrowly.

Where I myself wish Verrilli had gone into more detail was in explaining his reasoning: what is it specifically about a for-profit corporation that makes it so that it cannot 'exercise religion' for legal purposes? Is there any sort of for-profit organization that can 'exercise religion', or is it a blanket interpretation covering all for-profit corporations? If a corporation is exclusively in the business of selling the scriptures of a single religious faith, is it still impossible to say that it is not exercising its religious beliefs? Compare and contrast with a non-profit corporation that gives away Bibles, which Verrilli would seem to say is exercising religion. I want to better understand the government's reasoning that cogently distinguishes those two, in a way that says that the one is 'exercising religion' but the other is not.

This wish of mine also comes out a bit when Verrilli and Alito are discussing the fact that a corporation can bring a racial discrimination claim even though, strictly speaking, a corporation does not have a race. Verrilli explains the difference as being that, while in both cases you have to interpret 'person' to include corporations, here you also have to interpret 'religious exercise', which can theoretically be interpreted in a way such as to exclude for-profit corporations. But he seems to ignore the fact that in a racial discrimination case you also have to interpret 'race', which can also theoretically be interpreted in a way such as to exclude for-profit corporations. So it's not like here we have more terms needing to be defined in one instance than the other. So we're right back to what Alito's question was digging at: how does a court distinguish between a corporation's 'race' and a corporation's 'religion', and why can't one have both, one or the other, or neither, depending on the circumstances?

Anyhow, enough of my questions; back to the Justices'.

Finally, after having remained silent for the duration of the oral argument, Justice Breyer jumps in and steers Verrilli towards the 'least restrictive' question. Let us assume, Breyer posits, that Hobby Lobby and Conestoga have sincere beliefs which are substantially burdened by ACA. And let us assume that the Court finds that the government has a compelling interest to nevertheless provide contraceptive coverage to women. What about RFRA's requirement that the pursuit of that compelling interest be the 'least restrictive' means? Is the requirement currently made of for-profit employers the means least restrictive to their religious freedom? Wouldn't it be less restrictive for the government to foot the bill, rather than requiring the employer to pay for it? Or couldn't it require insurance companies to cover the cost?

This is a question which rarely gets brought up in popular discourse about the Hobby Lobby case, but by the time you get to RFRA's 'least restrictive' requirement, it's no longer a question of whether women should have the right to contraception. The question at that point is instead, on whose dime will that right be realized? Most of the time the question of 'on whose dime' is a public policy question: what political party is setting policy, what is their economic theory about government subsidies, what is their political theory regarding government intervention, &c.? But the 'least restrictive' requirement in RFRA means that it is also a legal question — one which must also consider the rights, in this case, of the religiously minded employer. And that is the end from which a court must tackle the issue.

This is something that Kennedy has been hinting at throughout the discussion but only comes around to making it explicit late in Verrilli's argument. Take the example of religious corporations. They receive an exemption (or an accommodation, depending on the corporation's exact nature) from the mandate that they pay for contraceptive coverage. But the government has admitted that those exceptions were not compelled by RFRA's requirements, but were compelled simply by policy decisions of the Department of Health & Human Services.

But wait a second, Kennedy asks, if that was a policy decision — not a decision based on constitutional requirements — how can you say that there really is a compelling interest to make this sort of requirement of employers? Doesn't the fact that the government, of its own free will, granted numerous exceptions to the mandate undermine the argument that there is a compelling interest? How can you have a compelling interest which excepts tens of millions of American employees?

In rebuttal to this, Verrilli points out that a number of other laws for which the government has a clear compelling interest (e.g., tax laws, the Americans with Disabilities Act, Title VII of the Civil Rights Act, &c.) also have many exceptions, but that doesn't mean the government isn't furthering a compelling interest with those laws. So perhaps the Court is reading too much into exceptions when determining whether the contraception mandate is a compelling interest.

Appropriately enough, however, the real stinger of the entire oral argument comes at the end — from Justice Kennedy, no less. The hole in the government's position, Kennedy thinks, is that it would also, in theory provide no recourse if a law required a for-profit corporation to provide abortions. A for-profit corporation would have no way to be excepted from that mandate under RFRA. Under the government's understanding, a for-profit employer cannot 'exercise religion' and therefore cannot have a religious objection to paying for abortions.

This, I thought, was a rather stinging jab from Kennedy. He had to touch one of the third rails of politics to make his point, but he made it in a rhetorically devastating way. Verrilli knew it, too. The only response he could give was that, in reality, there is no law on the books that requires such. But to this, Roberts lays a really clever trap that brings Kennedy's criticism and this case together. I've copied the exchange below verbatim.

GENERAL VERRILLI: If it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory that the for-profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.

CHIEF JUSTICE ROBERTS: I'm sorry, I lost track of that. There is no law on the books that does what?

GENERAL VERRILLI: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

CHIEF JUSTICE ROBERTS: Well, flesh it out a little more. What there is no law on the books that does what?

GENERAL VERRILLI: That requires for-profit corporations to provide abortions.

CHIEF JUSTICE ROBERTS: Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that's what we had before us.

Roberts is right. That is exactly the case that is before the Court. The reason Hobby Lobby and Conestoga object to covering the four methods of contraception at issue is because the effect of their use constitutes, in their view, the abortion of human life. They don't object to contraception altogether (though perhaps a Catholic corporation might); they object to covering these specific forms precisely because of their purported abortifacient nature.8

Still uneasy with the government position, the Court proposes another scenario — one coming from the real world. Denmark recently banned the slaughter of animals without first stunning them. As it happens, some conservative interpretations of kosher rules forbid stunning an animal before slaughtering it. Thus, the effect of the law has been to effectively prohibit the practice of conservative kashrut. Under the government's position, a corporation of kosher butchers would not be able to make any claim against such a law in the United States because it is a for-profit corporation.

The Justices take the example one step further and point out that if there were several butchers working together, they could make a claim so long as they did not incorporate. But once they incorporate, they are no longer able to make a claim, even though the primary purpose of the corporation is, at heart, religious. This strikes some of the Justices as a patently absurd reading of the law.

These examples admittedly make the government's position a difficult one. That doesn't mean the position is an incorrect one, but it does mean it's a more difficult one to justify. Either one has to say that the hypothetical of requiring employers to pay for abortions is ok and the hypothetical of prohibiting kosher practice is ok; or one must find a way to distinguish those undesirable cases from the present one. Verrilli couldn't find one when on the spot before the Court, but that doesn't mean one can't be conceived with more thought.

Conclusion

If you made it this far, I congratulate you on your endurance. I've seen so much misinformation regarding the case that I wanted to be certain that I spelled out the legal issues as fully as I could. I also wanted to make sure that I distinguished the legal questions from the political question of whether one thinks ACA is a good law or whether ACA is an economically sound way of addressing healthcare. While those are important issues, they are not what the Supreme Court is concerned with in this case.

In summary, below are the questions with which one must begin any critical discussion about the Hobby Lobby and Conestoga cases. I think the case neatly divides into these four 'compartments' of questions, addressing the major legal issues at stake.

Corporations: To what extent can a for-profit corporation 'exercise religion'? Can a non-profit corporation 'exercise religion'? If so, how can the two classes be distinguished? And how do each compare to a local church congregation or synagogue, both of which are also often incorporated under state law? Are we willing to say that no for-profit corporation can ever bring a freedom-of-religion claim, even if the freedom at stake is kosher laws? If not, how do we draw the line in law?

Substantial Burden: What constitutes a substantial burden on a person's religious exercise? Is that burden mitigated by third-party interests? Or are third-party interests better categorized as the compelling interest (see below)? By how much should cost of non-compliance differ from the cost of compliance?

Compelling Interest: What constitutes a compelling government interest? How do we consider the interests of third parties, such as the employees here? How compelling is the government's interest in making certain that everyone has access to contraception? And does that interest extend to having employers pay for such coverage? And to what extent can existing exceptions undermine the claim of compelling interest?

Least Restrictive Means: Are there any means less restrictive to religious liberty of employers than the method used here? With non-profit religiously affiliated corporations, the government pays for coverage, rather than employers: is that a viable method with for-profit corporations as well?

And so I hope these questions help to frame the way you think about the Hobby Lobby and Conestoga cases. I hope they generate robust discussion and debate as well. As always, I don't aim to tell you what conclusions about a case you ought to have; rather, I am interested in giving you the legal framework necessary to discuss a case intelligently and think about the important legal issues it invokes. I hope this article has been successful at doing so!




1 Note that in law, 'corporation' is not a synonym for 'business'. A corporation is simply multiple persons who are, together, treated as a single entity. It is an entity created by law and exists only for the purposes of law — a 'legal fiction'. Thus, most business are corporations; many religious congregations and denominations are corporations; many non-profit organizations are also corporations; and many municipalities are also incorporated. This is not to say that distinctions between the types of corporations do not exist; I merely wish to point out that, throughout this article, 'corporation' encompasses the full legal range.

2 'Compelling interest' is not a precisely defined concept, but rather signifies that the government must have especially strong motivations, central to the role of government, for enacting the law. Something that is more necessary than it is preferred. 'Compelling interest' is the difference, say, between levying taxes and regulating the price of milk.

3 To be clear, this is not, however, to say that every Catholic or evangelical Christian will apply their religious beliefs (which themselves may vary) to their business in the same manner.

4 The gossipy human interest side of this story is that Mr. Clement was Solicitor General (that is, the person who usually represents the federal government before the Supreme Court, a post also previously held by now-Justice Elena Kagan) under George W. Bush and also represented Congress in the DOMA case U.S. v. Windsor. Clement and Verilli, the current Solicitor General representing the government in these cases, also faced off against each other in oral argument in the previous Supreme Court case involving ACA, National Federation of Independent Business v. Sebelius.

5 Please note that the hypothetical here is not the government requiring people to be immunized, but requiring employers to provide insurance coverage for immunizations.

6 Speaking of taxation, one of the lightest moments of oral argument came when Clement was talking about the consequences of not complying and an sly reference was made to National Federation of Independent Business v. Sebelius. The exchange went as follows:

MR. CLEMENT: Comparing the $2,000 penalty to the cost of the health care is a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated —

CHIEF JUSTICE ROBERTS: She's right about that.

(Laughter.)

7 Note that the option of providing comprehensive healthcare, except for contraceptive coverage — i.e., the status quo for each of these corporations — is actually the financially least feasible, since a $100-per-employee-per-day tax is imposed on employers who provide insufficient healthcare. This would result in a yearly tax burden of $36,500 per employee instead of the $2,000 burden for not providing coverage at all.

8 I say 'purported abortifacient nature' because the actual function of the drugs and devices at issue probably do not actually cause an abortion. I'm honestly not up to speed on the science of this area and so I cannot say with any authority one way or the other. But whether they are actually abortifacient or not is not an issue before the court, and so it is irrelevant for the case as it exists currently.

19 December 2013

Duck the Dynasty of the Safe


As some of you may already know, Phil Robertson, one of the stars of the A&E series Duck Dynasty, was yesterday put on indefinite 'hiatus' after making remarks regarding homosexuality in an interview with GQ. One of the most remarkable aspects of this turn of events was the speed with which A&E acted. The GQ interview was published yesterday, and within about 12 hours or so, A&E announced that Robertson would be put on 'hiatus'. Not even a full news cycle had passed between the offending remarks were published and the network decision.

Since Robertson's remarks were essentially an unnuanced and brash restatement of the traditional Christian teaching on homosexuality (views which no one should have been surprised to find Robertson held), the incident is certain to spur up heated discussion on whether A&E's decision represents a growing anti-Christian sentiment on its moral teaching about sex. I am not writing to enter that conversation; I have very little interest in throwing my hat into that ring on either side. (I might also say that I have never seen the program, not even isolated clips.)

That is not to say, however, that I have no criticism of A&E for their action. When they made the decision to suspend Robertson, they were essentially making a public relations–related business decision; and being an entertainment corporation, I do not fault them for that. But I do have reservations about whether it was a well-considered business decision. Firstly, the rapidity with which A&E made the decision almost excludes the possibility of all the implications being thoroughly thought through. But more strongly, I'm generally skeptical that, for a show like Duck Dynasty that 'least negative' business impact come by suspending Robertson, as opposed to, say simply distancing the network from Robertson's comments (as is often done with controversial statements, including those which are editorially permitted to be made in programs themselves).

Even still, my main criticism is not of A&E. Rather, the thing that really concerns me in what surrounds this incident is the cultural norm which it evinces. This comes out in a column written by James Poniewozik for Time.com. In the piece, he points out that few doubted that Robertson held the beliefs which he made explicit in the GQ interview, but that no one was truly bothered by that because those views remained a subtext to his explicit traditional Christian values. In fact, the family's traditional faith was a big factor in the show's success. But when the interview caused that subtext to become text, all of a sudden a factor of success became a PR problem.

I think there's something to Poniewozik's theory, but it is also, on some level, a bit naïve. Given both the prominence of homosexual issues in modern cultural debate and the obvious cultural milieu in which Robertson himself swims, one would have to exercise a great deal of cognitive dissonance to be generally ok with his presumed views while they remain unexpressed but also to be genuinely indignant when he does express those views. Furthermore, what does it mean for the 45% of Americans who are in general accord with Robertson on the issue?1 Does that mean that the tolerance of 45% of the nation hangs on a knife's edge of subtext and text? And what of, say, Pope Francis whose views on homosexuality are of the same substance but different in tone; yet whom also was name person of the year by the gay periodical The Advocate?

But what I want to really want to zero in on is one phrase from Poniewozik's article. In making his case for the subtext/text framework, he refers to 'those of us who maybe just want to watch a family comedy about people outside a major city' so long as those people aren't 'thumping gay people with their Bible' as being part of the contingent who reacted adversely to Robertson's comments. I find this statement highly problematic, especially in light of the rest of the article and given my own experience with others who would be included in his 'those of us' demographic.

The problem with Poniewozik's statement here is that it is a manifestation of what I call the Culture of the Safe (or for pun purposes, Dynasty of the Safe in this article). What he is describing is certain duplicity. At once he wants to be both exposed to entertainment version of a non-urban family, but he does not want to be exposed to the full reality of such people — a delicious irony given that Duck Dynasty finds itself within the broad category of 'reality television'. In other words, Poniewozik is describing a desire to be exposed only to the 'safe' versions of those people who are different from us. Such a desire is not one that understands the full implications of diversity and of a plural society. Rather, it seeks to remain blissfully ignorant of how the other half lives, whoever that 'other half' might be. As an NPR story put it, at its heart, Robertson's crime is that he stopped being the safe 'Show Phil' and became the 'Real Phil'.

Now, I understand that in the case of Duck Dynasty, we're talking about entertainment, pure and simple. No one seriously thinks that the show has a documentary quality, despite the label 'reality television'. But this Culture of the Safe in not something restrained to this one incident. It is something which is quite pervasive in our society. Too often when people in our society seek new experiences, they seek out 'safe' versions. And so rather than actually encountering new experiences, they find themselves having slight variations on the experiences to which they are already accustomed.

As someone in New York City, I see this whenever I venture into Times Square. Each year millions of tourists from outside the city flock to Times Square to experience the Big Apple. But as most New Yorkers will tell you, Times Square is really nothing like New York City; it is merely suburban American with a slight urban flavor. It is a version of New York which is safe for non–New Yorkers.

Lest one think that I'm simply picking on Poniewozik, A&E, GLAAD, and others that have spoken out against Robertson, let me offer this reassurance: where I actually see this most often (and this is partly because of where I spend my time) is within the evangelical Christian church. The Culture of the Safe is the reason why Christian Contemporary Music is like it is: Top 40 with 'uplifting' lyrical content. The Culture of the Safe is why many youth programs are simply popular culture bathed in a veneer of morality.

It is also present in the 'hipper' sectors of modern evangelicalism, where more lip service is given to 'engaging the culture' and exposing oneself to non-Christian sources, but really it's just a new variation on Poniewozik's safe subtext/text framework. Rather than challenging the viewer or the artist in the ways that art, music, and literature really can, it reaffirms one's existing condition while giving the false impression of being challenged. See, for example, the list of likely culprits in an article last year from Curator on Stuff Christian College Kids Don't Like.

The real problem with the Culture of the Safe — regardless of who indulges in it — is its sinister deception. For the manifestations of the Culture of the Safe give the appearance that they are exposing their participants to other perspectives, ways of thinking, and lifestyles; but the true meat of 'the other' is never actually exposed. Rather, only the palatable aspects of 'the other' — the aspects which define the core of what makes 'the other' truly other — are put on display. One sees merely a string of simulacra. And so rather than gaining a better understanding of the world, and thus enriching one's life through exposure to new ideas, one is left in a place of satisfied and deceived complacency.

And so, I think a more responsible reaction to Robertson's comments would be for viewers — whether they agree or disagree with his comments — to recognize that they are part of the true reality. Rather than seeking a safe and sanitized version of the duckcall-making industry of northern Louisiana, viewers ought to want this as an opportunity to be challenged to see the world from a different perspective; as an opportunity to duck the dynasty of the safe and to show oneself the complex reality of the world as it is, in all of its uncomfortable fullness.

18 September 2013

Church Isn't for Learning


At Redeemer Presbyterian Church in New York City, a common question to ask when meeting someone is, 'What service do you attend?' Redeemer actually has eight services each Sunday, in three different locations, between 9:30am and 7pm. The different services have slightly different liturgies or musical styles, different main preachers (when Tim Keller isn't preaching, that is), and different demographics. And so finding out what service someone attends not only lets one know when and where they can be found on any given Sunday, it also allows for innocent stereotyping: 'Oh, you attend the 11:30 West Side service? I see....'

When I get asked the question, however, my answer usually throws the questioner for a loop — even when the questioner is one of the pastors. You see, I attend two services each Sunday. ('Yes, each Sunday,' I often have to repeat.) The follow-up question is nearly as predictable as the physical reaction: 'So, is it usually different people preaching at the two services?' — a valid question since, even though there are eight services, the Tim Keller only preaches at four; other pastors preach at the other four.

As it turns out, it's usually the same preacher at both services, preaching the same sermon. (I actually have a spreadsheet that demonstrates why this is the case, 90% of the time.) Even when it's different preachers, though, they're always preaching on the same text. So when I attend two services, I usually hear the same sermon twice; though occasionally I'll get two different sermons on the same text. At this point, the questioner will either ask, 'Why?' — if I haven't already preempted the question and rolled right into the explanation.

The reasons are actually a bit complicated and so my answer to the 'Why?' question isn't as rote as the earlier questions. Part of the reason is habit. For seven years at my previous church, each week I attended both morning and evening services — not at all unusual in that church. And since the sermon and order of worship were entirely distinct at the two services, there wasn't the same 'repetition' issue. The same can be said for much of my childhood when my family would attend both morning and evening services (not to mention Wednesday evenings). And so it's entirely natural for me to anticipate two services every Sunday.

Part of the reason is for reasons of community. The morning service I attend is the one I have attended since I moved to New York; it is the one whose liturgy I find most amenable to worship; and it is the one I serve at each month. And the evening service I attend is the one which my small group attends together, as well as other friends.

But the question remains: why doesn't the fact that the same sermon is preached at both services deter me from attending both? At the root of that question, however, is an implicit and problematic assumption that the reason one goes to church is to hear a sermon. Thus, the reasoning follows, if one will hear a sermon one has already heard earlier that day, then the core reason for going to church is no longer present.

There are two main problems with that reasoning. The first is that hearing a sermon a second time around is not a futile exercise. One can certainly absorb new ideas or better comprehend the same ideas the second time around. The number of students who record lectures for later review — let alone re-read assigned readings or review their own notes ad nauseam — is evidence enough of that.

But the second problem with that line of reasoning is more fundamental to what we understand the very purpose of a corporate worship service to be. It is absolutely true that Reformed church traditions make the sermon central to the service in a way that other liturgical traditions do not (though Reformed sermons still often account for less than 50% of the length of the service). Compare the 10-minute Catholic homily to a typical 30-minute Presbyterian sermon. For an even starker contrast, look to the Matins and Evensong services from the Anglican Book of Common Prayer, which often have no preaching. I am certainly not criticizing that sermon-centrality (more on that later) — nor do I wish to criticize liturgies which give less of a role to preaching — but I do wish to criticize the view that sees the learning of something from the sermon as the core purpose in attending a worship service.

This all ought to be rather obvious, since the principal reason the Church comes together corporately weekly for a worship service is actually right there in the title: worship. It is not a sermon service, but a worship service. The Church gathers on the Lord's Day to worship. The exposition of Scripture in a sermon is simply one of the liturgical elements which encourage and guide us in our worship.

The reason the Reformed preacher preaches from Scripture stems from one of the foundations of the Reformation, sola scriptura: Scripture is the only infallible rule of faith and practice. We come to know God from Scripture, by which he makes himself known to us. If we are to worship this God, we must know this God; if we are to praise him for his attributes, we must know his attributes; if we are to thank him for what he is done, we must know what he has done. And so the role of the preacher is to explain to the congregation, from Scripture, who God is and what he has done so that they can better worship God.

And so, yes, the sermon does serve as something whereby we learn something about God. But within the context of a corporate worship service, that which is taught is not simply taught so that we might acquire knowledge as an end of itself. The reason why preaching is included in the worship service itself is so that it might aid us in our worship. To an extent, this is true every time we learn about God, for, as the Westminster Larger Catechism famously says, our 'chief and highest end is to glorify God, and fully to enjoy him forever.' And so all that we do in our life ought to point us toward that end.

Trevin Wax recently made a similar point over at his blog on The Gospel Coalition's site. In the article, he describes how a conversation with his son made him newly realize that the reason we gather each Sunday is to worship God. He describes how his son one day claimed, 'I know all the Bible stories now and all the songs we sing. I don't think we need to go to church every week. Why don't we just wait until there's something new to learn?' But as Wax points out to his son, church isn't for learning. Sometimes we may hear the Word of God preached and not really learn any new facts. In such cases, we should allow the sermon to remind us of what we already know and to strengthen our awe of him.

One model for this understanding of what doctrine (i.e., teaching) ought to mean for us is found in the writings of Paul. So often in his epistles, Paul's teaching of orthodoxy climaxes in fervent praise. (E.g., Rom 11:33ff.; Eph 3:20ff.; 1 Tim 1:17; &c.). Paul intimately and thoroughly knew everything that he was writing already, and yet his pen still exploded in worship as he wrote. This is analogous to the relationship that ought to exist between preaching and the rest of the worship service. Sound doctrine, as found in the Word, ought to inform our worship. And, as if a feedback loop, worship itself can also prepare us to hear God's Word preached more clearly and powerfully.

Carl Trueman, commenting on Paul's doxology in 1 Timothy, has said, 'Teaching that does not terminate in praise is not true teaching; it has missed the point that doctrine is the means to the meaning of life, which is the worship of God. Praise that is not rooted in doctrine is not true praise; it is simple fulfillment of personal aesthetic tastes. True praise is rooted in the identity and action of God, because it is a response to the identity and action of God.' Because worship is a response to doctrine, every time the Word of God is faithfully preached, it ought to incite us to worship. We ought to be able and eager to respond regardless of whether what we are responding to is novel or fresh.

This is not to say, however, that it is impossible for sermons to become monotonous week to week. This can occasionally happen in all churches: one might find that every sermon seems to perennially have the same content. And so rather than finding ourselves reminded of who God is, we find ourselves tuning out. I would suggest, however, that when this happens, it is because the preacher has strayed from the what the Scripture is actually saying and is preaching with an agenda or exegetical laziness. Faithful exposition of God's Word, however, should not result in boredom, but should always incite awe and praise.1

There is one more observation that I would like to add at this point. One of the things about Sunday worship that I have subtly emphasized throughout this article is the fact that this worship is thoroughly corporate. It is a way for the entire local body to unify around the public act of glorifying God. A well-formed liturgy shaped by the Scripture being preached that day can further aid that unification. The sermon can essentially announce, 'Today we meditate on God's justice and worship him for being just,' while the hymns, prayers of confession, and other Scripture readings further focus the entire congregation upon that theme. Or perhaps the sermon is an exposition of a certain aspect of God's law, or his goodness, or his sovereignty.

There is a certain ineffable power to such a scene: an entire community assembling to praise God together, with one voice, for who he is and what he does. Some in the congregation will learn of God's justice for the first time, some will find new realizations of the shapes that justice can take, while others will find deep comfort in being reminded, for the thousandth time in their lives, of the unfathomable depths of God's justice. Everyone may have his own peculiar reaction and reason that week for praising God for his justice, but the congregation as a whole is nonetheless united objectively around God and his justice.2

And that is why I go to two services each Sunday, even though I might hear the same exact sermon twice. Not only will I sing different songs and pray different prayers (and yes, even confess new sins) at the two services, but I am also given the opportunity twice each Sunday to be reminded of why I worship God and to join with an entire body of fellow Christians to worship him in response to that reminder of who he is and what he has done.

And so I would challenge you this week, as you attend church this week, to go into it with the purpose not necessarily of learning something new, but with the purpose of worshiping God and allowing the entire service to incite and inform that worship.



1 I'm sure to step on someone's toes when I say this, but I do think that there is a tendency within so-called gospel-centered preaching to sometimes stray from what a passage actually says in order to fit it into some predetermined rubric. I sometimes refer to this as 'the third point [of a three-point sermon] is always Jesus' preaching. Gospel-centered preaching is actually something of a recent phenomenon and can too easily become formulaic and thoughtless and thereby unrooted in the passage being preached. Since that is a much larger topic, though, I'll be satisfied to leave my criticism at that for now.

2 I'll be among the first to admit that I think the liturgy at my church can sometimes seem haphazard — as if this week's songs, prayers, and confessions were selected at random out of a hat or based on the instrumentalists, with perhaps a song we haven't sung in a while — as opposed to being selected for focusing the congregation's attention on the Word and the ways in which it incites us to worship. But this is a minor point, which I'll also concede as a philosophy of liturgy that not all share.