In general I agree with Jon Shields (in his post below) about the absurdity of marking birth as the decisive moment when a child acquires moral worth under our laws. And I admired his powerful Weekly Standard article very much. But I want to make two comments by way of mild dissent on a couple of points.

First, as I note at Public Discourse today in “Kermit Gosnell and the Logic of ‘Pro-Choice,’” the most up-to-the-minute philosophers in bioethics are dispensing with any “sharp distinction,” as Jon puts it, between the unborn child and the one who has been born. The Journal of Medical Ethics has an entire symposium on infanticide in its latest issue, in which one can see scholars at prominent institutions reasoning (plausibly, alas) that if the unborn child can be licitly aborted, then “after-birth abortion” can be permitted as well.

Second, Jon is wrong about what Pennsylvania law says on late-term abortions. He writes below, “Had Gosnell killed his victims in the womb and complied with a few other minor requirements, he would have committed no crime under the laws of Pennsylvania or the United States.” In his original Standard article, Jon wrote:

Pennsylvania is one of nine states that require a second physician to concur with the “professional judgment” of an abortionist who wants to perform a third-trimester abortion. Gosnell failed to seek second opinions. One has to wonder: Is that failure really a capital crime? Gosnell ignored a procedural requirement of Pennsylvania law.

There’s a good deal more to the Pennsylvania late-term abortion law than that. As I explain at Public Discourse:

The Pennsylvania Abortion Control Act provides that unless a physician can establish that he “reasonably believes” an unborn child is younger than 24 weeks, or, if the child is older, he can establish that continuing the pregnancy will result in either the death of the mother or “the substantial and irreversible impairment of a major bodily function,” the physician cannot perform a late-term abortion.

If he knowingly commits a post-24 weeks abortion, based on such stringent life and health criteria, the doctor must certify his judgment about the threat in writing; acquire the concurrence of a second doctor in that judgment based on a “separate personal medical examination” of the woman; perform the abortion in a hospital; employ procedures designed to maximize the unborn child’s chances to survive; and have a second physician present, ready to consider any surviving child his primary patient.

The purpose of this Pennsylvania statute is, in substance, identical to that of the federal Born-Alive Infants Protection Act (BAIPA), and state laws similar to the latter. Whereas BAIPA protects the right to life of the child who survives an abortion, the Pennsylvania act protects the child who could survive an abortion, making it criminal in most cases to abort the child and, where an abortion is permissible within narrow limits, requiring doctors to treat the child as a second patient who should be brought into the world alive and unharmed if possible.

Gosnell was convicted of twenty-one counts of illegal abortions under this statute, passed in the late 1980s when pro-life Democratic governor Robert Casey, Sr. was in office. The law is a direct challenge to the anything-goes abortion license established forty years ago in Roe v. Wade and Doe v. Bolton (as I also explain at PD). We’ll see if these convictions are upheld. If they are—as they should be—we could begin to see the unraveling of the regime of abortion on demand.

I’m glad that Matthew Schmitz posted excerpts yesterday from the statement released by Southern Baptist leaders regarding recent reports about religious freedom in the military. Russell Moore (familiar to FT readers), president-elect of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and Kevin Ezell, president of the SBC’s North American Mission Board (which endorses all Southern Baptist military chaplains), engage in no fearmongering. They note that some recent stories have been blown out of proportion (no, the notorious Mikey Weinstein of the misnamed “Military Religious Freedom Foundation” is not guiding policy decisions on military law), but they zero in on some genuine concerns for the hundreds of thousands of servicemen and women who want to satisfy the demands of both their military duty and their faith.

Here are some portions of the Moore-Ezell statement that Matt omitted yesterday (beginning with a sentence he did include):

What incidents have taken place, we wonder, that would call for this seemingly arbitrary distinction between ‘evangelizing’ and ‘proselytizing’? Proselytizing, after all, includes a range of meaning, encompassing a definition of ‘seeking to recruit to a cause or to a belief.’ With a subjective interpretation and adjudication of such cases, we need reassurance that such would not restrict the free exercise of religion for our chaplains and military personnel.

After all, who defines what is proselytizing and what is evangelism? What could seem to be a friendly conversation about spiritual matters to one serviceperson could be perceived or deliberately mischaracterized as ‘proselytizing’ to the person on the receiving end. The fact that this has been raised at all in such a subjective fashion could have a chilling effect on service personnel sharing their faith at all.

We believe in a free marketplace of ideas. Moreover, evangelical Christianity is, by definition, a faith that believes all Christians are to share the gospel with our neighbors and friends. To insist on a privatized, non-missional Christianity is to establish a state religion of non-conversionist faith that renders evangelical Christianity as well as other faiths — such as the Latter-day Saints — out of bounds. For a religion to be free, it must be unbound by restrictions that unfairly limit its advance.

This statement is both thoroughly Christian and thoroughly American.  In the free marketplace of religious ideas, the joyful sharing of the good news with one’s fellows is an act of charity, and so too is listening respectfully.  The talking and the listening are acts of good citizenship as well, and are no conceivable threat to military discipline, good order, or the lawful carrying out of one’s duties.  To insist on a Weinstein-esque “separation of church and state” turns a garden of faiths into a desert, and is nowhere commanded by our Constitution.  Military norms that bar coercion, harassment, or untimely distractions from carrying out one’s duties–norms that would apply equally to religious speech and, say, soapbox political orations or invitations to get-rich-quick schemes–are adequate to the task of policing the boundaries of permissible religious speech.

After calling for clarification of this seemingly arbitrary “proselytization vs. evangelization” distinction, Moore and Ezell conclude thus:

Our military men and women have submitted themselves to the authority of the United States armed services. They have not placed their souls or their consciences or their constitutional rights in a blind trust. Moreover, we reaffirm what our country has always recognized, that chaplains do not serve a merely civic function. They are there in order to facilitate the First Amendment-guaranteed free exercise of religion for our servicemen and women. That is only possible if these chaplains are free to be, respectively, Baptists or Catholics or Jews or Muslims or Latter-day Saints, etc., rather than merely ministers of some generic American civil religion.

We pledge to continue meeting with military leaders to ensure civil conversation about religious liberty. We also pledge to continue meeting with elected and appointed officials in the political arena, to ensure that constitutionally guaranteed religious freedoms are maintained. We further pledge to work with persons of good will to ensure that our First Freedom is maintained, in the military and in the civilian arenas, as we render unto Caesar that which is Caesar’s, but not that which belongs only to God.

Well said. There is much wisdom in these lines about how men and women of faith can proudly serve, as free citizens, the defense of a free country.

Somehow I have dropped the habit of reading the comics in our daily paper, and I really should try to re-acquire it. (Now there’s a suggestion for summer reading to add to Collin Garbarino’s list: read the comics! But do it all year ’round.) I do usually catch the color funnies on Sunday, and this week I was struck by the strip “Frank and Ernest,” by Tom Thaves. If you are not an afficionado of “Frank and Ernest,” allow me to recommend it. The last panel (almost always) accomplishes a pun, the sort of joke often unjustly derided as a low form of comedy, but quite difficult to pull off day in and day out with something both funny and fresh, much less with a true “groaner” as “Frank and Ernest” often does.

Anyway, yesterday’s Sunday edition of the strip did not actually end with a pun, just a rather lame play on a familiar phrase. But that’s not what’s interesting. This is: the subject of the strip was the deadly sins, “some” of which played golf one day, with amusing results. Just six of the seven deadlies made it into the strip, and which was missing?  Go have a look and you should notice.

You’re back now? Good. Of course it was Lust that was missing. Is this just because the funny pages are a “family” venue? Maybe. But perhaps it’s because Lust is the only one of the seven deadly sins that, in our postmodern age, isn’t even a sin to most people any more. It’s the one of which everyone is guilty and no one is ashamed. It has lobbyists, publicists, lawyers, and teachers on its payroll. The other six deadlies–Envy, Pride, Greed, Sloth, Wrath, and Gluttony–are drawn as hideously (and hilariously) ugly in the comic strip. Could we even put a humorously ugly face on Lust these days? We may all be guilty, at various times, of all six of the “Frank and Ernest” deadlies, but only Lust has achieved the position of employing all the others as its minions.

There’s just no room for it in the light mockery of the Sunday funnies.

Our recent discussions around here about the “Stepping on Jesus” exercise in some college classrooms reminded me of an occasion when the power of a symbol hit me hard and left a mark. A half dozen years ago, when my wife and I lived in a small town in rural Virginia, our little Catholic parish acquired a beautiful statue of the crucified Christ, hollow-cast in bronze and immensely heavy as it was slightly larger than life-sized. It came just as a statue, packed carefully and shipped by the sculptor, and our pastor wanted it raised on a cross in the church. So one of our parishioners with woodworking skill set about constructing a massive cross out of heavy timber in order to bear the weight. Then he asked several of his friends to meet him at the church one summer afternoon to complete the job. I was one of the parishioners helping to attach Christ to the cross and then erecting the assembly you see below.  The picture does not do the sculpture justice:

Christ’s hands and feet—just as in the crucifixion—were the attachment points and had been drilled already by the sculptor. I turned the wrench that attached one of the hands to the cross with a bolt, and then went up a ladder after the assembly was put upright, and tightened it still more. It was just a job of work with some hardware and tools, and it was just a sculpture made of bronze and a great timber cross, not even blessed by a priest yet before the job was done.

But I could not shake the feeling at the time—nor have I since—that I was myself crucifying Jesus. Perhaps it was because the statue was so life-sized and lifelike. Thinking of it right now gives me the heebie-jeebies. Saying to myself “it’s just a statue” doesn’t put away such thoughts. On Good Friday, this entirely “symbolic” experience gets to me still. I can’t say I’m sorry it does.

Happy Easter to all.

The higher ed press has been abuzz lately with a story out of Florida Atlantic University, which began with a student claiming that he had been “suspended” for his refusal to take part in a classroom exercise. The student, a Mormon, was enrolled in a course in intercultural communication in which the professor “asked students in the class to write the word ‘Jesus’ on a piece of paper, fold it up, and step on it,” according to the student’s account.

When the story broke, the university’s public relations shop went into damage control—especially after Florida’s Gov. Rick Scott denounced such goings-on at a public institution—and said that no one had been suspended or otherwise punished for refusal to participate in the exercise, but that it would not be used again in any class on the campus.

But where did this “exercise” come from in the first place? Turns out it is in the instructor’s guide published as a companion to a leading textbook in the field, Intercultural Communication: A Contextual Approach, now in its fifth edition from Sage Publishing. The author is James Neuliep, a communication professor at St. Norbert College in Wisconsin. Here is the relevant passage from the instructor’s guide—the sort of book that will often include classroom exercises unmentioned in the student’s textbook precisely so that teachers can bring about an unexpected moment during class:
(more…)

The other day here at First Thoughts, Matthew Schmitz commented on “Jay Michaelson’s Error-Riddled Conspiracy Theory” about present-day campaigns to defend religious freedom. A closer examination revealed that maybe there was a whole lot more to be said on this tendentious “report” of Michaelson’s. At least I thought so. And so I’ve said it NRO’s Bench Memos in a three-part series today here, and here, and here.  UPDATE: Links corrected.

Ryan Anderson, editor of the Witherspoon Institute’s Public Discourse and a fellow at the Heritage Foundation, has done yeoman service in providing an overview of some of the many arguments made by amici curiae in briefs submitted to the Supreme Court in its two upcoming marriage cases.  More than fifty such briefs have been filed, in defense of the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act.  Ryan has the first of a series of posts highlighting the arguments in these briefs here, at Heritage’s site.  I look forward to more installments.

The Witherspoon Institute’s William E. and Carol G. Simon Center on Religion and the Constitution, which I have the honor to direct, will again sponsor its annual summer seminar this year, “The Moral Foundations of Law.”  Held August 5 to 9, 2013, on the campus of Princeton University, this seminar for law students and graduate students in closely related fields will be under the overall direction of Professor Gerard V. Bradley of Notre Dame, with sessions led by Professor John Finnis of Oxford and Notre Dame, Professor Robert P. George of Princeton, and yours truly.  We will once again have a federal judge as a guest lecturer.  The application deadline is April 1.  You can find more information here.

The U.S. Commission on Civil Rights will hold a hearing next month on religious liberty, and will solicit comments for a month after that.  Here’s a Commission press release:

The United States Commission on Civil Rights announces that it will hold a briefing to examine recent legal developments concerning the intersection of non-discrimination principles with those of civil liberties. The briefing will take place on Friday, March 22, 2013 at 9:30 AM EST in the Commission’s new headquarters office at 1331 Pennsylvania Avenue NW, Suite 1150, Washington, DC 20425. The offices are accessed using the F Street NW entrance. Interested members of the public are invited to attend.

Two topics will serve as starting points for a discussion involving religious liberties and non-discrimination rules and their broader implications for civil liberties: the Hosanna-Tabor v. EEOC case and student group non-discrimination policies, including the Christian Legal Society v. Martinez case. Also at issue are religious liberty claims under First Amendment provisions other than the Religion Clauses.

There will be two panels at the briefing.  The first panel will be composed of scholars involved in the Hosanna-Tabor v. EEOC or Christian Legal Society v. Martinez litigation:  Kimberlee Colby, Senior Counsel at the Christian Legal Society, Ayesha Khan, Senior Litigation Counsel, Americans United for Separation of Church and State, Daniel Mach, Director, American Civil Liberties Union Program on Freedom of Religion and Belief and Lori Windham, Senior Counsel, Becket Fund.

The second panel will consist of experts who will discuss the broader conflict between anti-discrimination norms and civil liberties. Experts scheduled to appear on the second panel include Alan Brownstein, Professor, University of California at Davis Law School, Marc DeGirolami, Associate Professor, St. John’s University School of Law, Leslie Griffin, Professor, University of Nevada Las Vegas Law School, Marci Hamilton, Professor, Benjamin N. Cardozo School of Law, Michael Helfand, Associate Professor, Pepperdine University School of Law, and Edward Whelan, President, Ethics and Public Policy Center.

Until April 21, the Commission will accept comments on this subject, which can be sent to publiccomments@usccr.gov.  Attachment as Word or PDF format for comments is preferred, for easier distribution to commissioners.

Over at dotCommonweal, Grant Gallicho replied late last week to my long post here the weekend before. First Thoughts readers are probably tired of the exchange by now, and I am almost content to let Gallicho have the last word, because his last installment is so repetitive of what he has said before rather than actually meeting my arguments. But only almost. I’ll be as brief as can be, and shake the Commonweal dust from my feet.

1. Gallicho has again conceded my argument that the religious employers newly “accommodated” under the latest proposed policy from HHS will still be paying for the contraceptive/sterilization/abortifacient coverage.  He just has his own peculiar confusion about what “paying for” means in this context. Sorry, it’s not like buying a banana and worrying about what the grocer will spend the money on. He might learn something from the amicus brief filed in the Hobby Lobby case on behalf of Abbot Thomas Frerking of St. Louis. Look particularly at the discussion beginning on p. 22. Or see this brief on behalf of Notre Dame emeritus professor Charles Rice, especially p. 22 and following. (And before anyone objects that these arguments are about for-profit employers getting no break in the HHS policy, see point 6 below.)

2. As for the subject of intention in Catholic moral reasoning, I am supposed to be a complete babe in the woods, according to Gallicho. But I had not previously thought that “intention” can be adequately translated as “what I really subjectively want to accomplish by this act that has its own objective meaning I choose to ignore.” The completely secular field of contract law does not hold this, and neither does the Church. I cannot say with confidence that Gallicho does not mean this, but I am compelled by charity to hold out the possibility that he does not.

3. He thinks that by the shorthand phrase “illicit coverage” I mean a “thing,” not an act. Wrong.

4. He evidently thinks that the potential choices of others to act badly in their own realm of freedom of action (as by purchasing their own insurance if an employer doesn’t provide it) have some bearing on the rightness or wrongness of one’s own actions in one’s own realm of choice. Curious moral calculus, that.

5. He confirms that he is as statist as I thought, regarding the decision of a government to compel behavior to which one objects on religious grounds as no different from taxation for spending on purposes to which one objects.

6. He remains completely silent about–and so tacitly concedes the accuracy of–my description a week ago of what the “accommodation” accomplishes by way of a change in policy “before” and “after” its effect on the regulation.  The employer’s insurance contract remains in every respect the same, except that the new policy resolves to tell a falsehood about it.  As another Hobby Lobby amicus brief–this one filed on behalf of the Archdiocese of Oklahoma City–puts it (p. 16), “Catholic doctrine . . . prohibits providing, paying for, or facilitating access to (among other things) abortion-inducing drugs and devices.” There is no question that such provision, payment, and facilitation will result just as much from the “after accommodation” policy as from the “before accommodation” policy, which was indistinguishable from the policy then and now for all other non-religious employers. There is only a cynical “presto, change-o” of making the provision “disappear” in the paperwork of the “after” policy.  No reason to be gulled by that, unless you have a standing interest in being gulled.

7. He changes the subject to talk about self-insured employers at one point. Different form of the same problem, but we weren’t talking about that.

8. Gallicho is also silent on the Obama administration’s decision to become the arbiter of how much religious freedom different actors get in our civil society. If the “accommodation” is the right outcome for religiously affiliated nonprofits, why not for other nonprofits and for-profits? The answer is obvious. Even the Obama administration cannot maintain with a straight face that everyone gets free contraceptives and abortifacients, with no one paying for them. But by the same token, why not move to cover the currently exempt group of “religious employers” with the same policy as is now proposed for religiously affiliated nonprofits? Surely there’s a “war on women” to be fought in that sector of employment! By Gallicho’s own lights, the full exemption ought to be eliminated for houses of worship and the like, and replaced by the “accommodation,” which really does, if you squint at it hard enough through a dotCommonweal lens, let everyone off the hook. Then all women get their “preventive services,” all consciences are salved, and everybody’s happy, right?

I’m only amazed that Gallicho has not proposed this statesmanlike solution to Secretary Sebelius.

Everywhere I keep hearing that when the cardinals of the Catholic Church meet next month to elect Pope Benedict XVI’s successor, there will be 117 electors in the conclave. Quite a number of living cardinals are over 80, and thus ineligible to vote in the papal election.

Canon lawyer Edward Peters provides a handy list of 118 cardinals who are not yet 80 years of age. The oldest of them, Cardinal Husar of Ukraine, will turn 80 on February 26, and thus become ineligible before the abdication of the Holy Father becomes effective. Presumably this is how journalists come up with the figure of 117 electors.

But three more cardinals will turn 80 in March: Cardinal Kasper of Germany on March 5, the Italian Cardinal Poletto on March 18, and Cardinal Sandoval Iñiguez of Mexico on March 28. It seems unlikely that the conclave will convene before March 5; is Cardinal Kasper therefore disqualified? Or is the rule that in order to be eligible one must be younger than 80 on the date when the See of Peter becomes vacant, but that one may participate in the election if one turns 80 while it remains vacant?

If that is not right–if one must be younger than 80 at the time of the decisive balloting on the next pope–then Cardinal Kasper seems sure to be out. And then Cardinal Poletto must drop out if the balloting does not conclude by his birthday on March 18, and Cardinal Sandoval Iñiguez if things aren’t wrapped up by his birthday on March 28 (by which time it will be Holy Thursday anyway, and they’d better get a move on).

Perhaps Professor Peters can enlighten us about this. But it seems possible that we will have only 116 electors eligible to vote in the conclave, and maybe as few as 115 still voting by the time a choice is made. Inquiring minds want to know what rule governs here, however.

UPDATE: Commenters below assure me (partly on the authority of Prof. Peters) that it’s the first alternative I describe above–being less than 80 years of age at the time the See becomes vacant.  So 117 is correct.

Readers be forewarned: this is a very long blog post.

About a week ago in this space, I criticized Grant Gallicho for saying, at the dotCommonweal blog, that the Obama administration’s recent “accommodation” of religious nonprofits under its HHS contraception mandate ought to satisfy its critics. After all, wrote Gallicho, “No arrangement proposed by HHS [under the latest proposed version of its policy] would oblige a Catholic institution to fund contraception coverage.”

And if critics, including the Catholic bishops, fell back on a claim that the Church’s educational and charitable ministries would be facilitating contraception coverage even if they didn’t pay for it, Gallicho was ready for that too: “The facilitation argument doesn’t withstand scrutiny.” He argued that even if an employer dropped all health insurance coverage (and got away with that), its employees would still have to buy insurance as individuals with the wages they were paid—insurance that “would certainly include contraception coverage,” presumably because no coverage lacking it would be available to them—and so it really made no difference if the employer paid for it in the first place.

While I offered some criticism of Gallicho’s sloppy description of the categories of employers either “exempt” from the policy, or “accommodated” under it (both of which, he wrongly said, could “opt out” of coverage for their employees, when that is true only of the first category), my main purpose was to explain why Gallicho was wrong to say that the “accommodated” employers will not be arranging and paying for their employees’ contraception coverage. I had previously explained this at Public Discourse, and I went over it again here, saying:

Perhaps the administration is as confused about the economic reality of insurance as Gallicho is, so I will not accuse it of a deliberate lie. But when it claims that the “free” contraceptive coverage can be afforded by the insurer because “cost-savings” will result from “improvements in women’s health and fewer childbirths,” the administration is admitting that the contraception is already being paid for by the employer, if its policy covers childbirth and women’s health in general. The insurer is not being told to lower its premiums because of the cost-savings on procedures and ailments already covered; it is being told that it can put the cost-savings toward the expense of providing contraception. The existing premiums, paid by the employer, will be the funding source.

 A week later, Gallicho has now responded to me, with a useful tutorial on how insurance works. (more…)

Journalism professor Howard Good of SUNY-New Paltz has written a piece with the sombre title “Teaching Ethics in a Dark World” (subscribers only) for the Chronicle of Higher Education. A teacher of a course in media ethics, he was called by a New York Times reporter in late December, and asked to comment on the online publication, by the suburban White Plains newspaper The Journal News, of a map of handgun permit holders in New York’s Westchester and Rockland counties. Let’s allow Good to take the story from there:

I told the reporter that The Journal News was within its legal rights to publish the map, but that publishing it was only a first step. To ethically justify publication, the paper would have to push forward with consistent, in-depth coverage of gun violence. The news media in general had to keep a hand on the horn until policy makers as well as the public woke up and attended to the problem. We shouldn’t be allowed to forget Newtown with the ease that we had been allowed to forget Columbine, Virginia Tech, or Aurora. . . .

I spoke with the reporter, who was up against a deadline, for about 10 minutes. The story that appeared the next morning omitted at least 99.9 percent of our conversation. My contribution to public enlightenment consisted of a single remark shorn of context and nuance and stuck in a bottom paragraph that begged to go unread.

Here’s what the Times actually published of what he said, on December 27:

Howard Good, a professor of media ethics at the State University of New York at New Paltz, said that given the fierce debate over guns, such databases were a worthy endeavor for news organizations. But Professor Good said the coverage must also address public policy.

“It’s not enough to put images out there that provoke a visceral reaction,” he said.

Then critics of the Journal News, figuring that sauce is tasty on both geese and ganders, got hold of some reporters’ and editors’ home addresses, and published those online. Now Professor Good got a call (more…)

At the dotCommonweal blog, Grant Gallicho sorrowfully surveys the statement issued yesterday by Cardinal Timothy Dolan on behalf of the USCCB, which rightly characterized the latest version of “accommodation” on the contraception mandate of the Obama HHS as inadequate. Mr. Gallicho seems to be confused, however, about what the government actually announced a week ago.  (The cardinal, by contrast, sees things quite clearly for what they are.)

Gallicho writes this, beginning by quoting Cardinal Dolan:

“The administration’s proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic Charities.” Yet Dolan fails to mention what replaced the four-part definition. The USCCB had called that definition “unprecedented” in federal law. So HHS lifted the revised definition from something with plenty of precedent: the federal tax code. According to the new rule, any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate. If the employer pays an insurance company for employee health coverage, it has to notify the insurer that it doesn’t want contraception included in the plan, and the insurer in turn automatically enrolls employees in a separate plan at no cost to them or to their employer. If the objecting employer is self-insured, it just has to inform its plan administrator, which will arrange for free contraception coverage for employees.

Any reader of Cardinal Dolan’s statement will see that he is perfectly aware of what Gallicho says he “fails to mention.” And it is Gallicho who seems to conflate the administration’s category of ”religious employers,” altogether exempt from the mandate, with the new second category it has proposed, called “eligible organizations,” which are not exempt but instead receive an “accommodation.”

Gallicho fails to understand that the new, tax code-derived definition of “religious employer” is perfectly irrelevant when it comes to the new second category, and insists, quite wrongly, that “any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate.” Here he makes several mistakes at once. First, the tax code’s borrowed language does not apply to “any religiously affiliated employer that has nonprofit status,” but to a much tighter category of churches and their “integrated auxiliaries.” Second, the employers in the new second category who are nonprofits that “hold themselves out as religious” do not get to “opt out” at all, if by that is meant that their employees are not covered by the mandate; they get the new (essentially fake) “accommodation.”

Third, if it were true that there were just a single category rather than one, then even churches’ employees would be covered by the mandate, as Gallicho’s immediate sequel indicates. He writes that the employer “opting out” (as he misleadingly puts it) informs its insurer, who “in turn automatically enrolls employees in a separate plan at no cost to them or to their employer.” But that is not true of the wholly exempt religious employers in the first category, only of the employers in the new second category.

Having confounded the two categories together with misleading “opt out” language that accurately applies to only one of the categories, and having misdescribed what “opt out” means in such a way as to imply that the female employees of actually exempt employers will instead be covered, Gallicho then goes on to suggest that Cardinal Dolan has reasoned wrongly about the moral norm of culpable cooperation. But everything in Gallicho’s argument rests on the proposition that the newly “accommodated” employers will not have to pay for the contraceptive coverage. And that, as I explained yesterday at Public Discourse, is simply not so. When the Obama administration claims that employers will not “fund” the contraceptive coverage provided by insurers, it speaks falsely.

Perhaps the administration is as confused about the economic reality of insurance as Gallicho is, so I will not accuse it of a deliberate lie. But when it claims that the “free” contraceptive coverage can be afforded by the insurer because “cost-savings” will result from “improvements in women’s health and fewer childbirths,” the administration is admitting that the contraception is already being paid for by the employer, if its policy covers childbirth and women’s health in general. The insurer is not being told to lower its premiums because of the cost-savings on procedures and ailments already covered; it is being told that it can put the cost-savings toward the expense of providing contraception. The existing premiums, paid by the employer, will be the funding source.

This also explains a matter Gallicho takes up but whose implications he does not understand–the problem of the self-insuring employer. The reason the administration has such trouble designing an “accommodation” here is that the costs of “free” contraception are considerable, and with the self-insurers the sleight of hand doesn’t work so easily.

Since the question of cooperation always hinges on an accurate representation of the facts in the case whose moral gravity we are considering, it is no wonder Gallicho goes so wrong on his “correction” of Cardinal Dolan’s moral reasoning. He has begun by misunderstanding multiple factual elements of the policy he is so interested in defending.

In a statement released today on behalf of the U.S. Conference of Catholic Bishops, Cardinal Timothy Dolan, the Archbishop of New York and president of the Conference, responded to last Friday’s proposed revision of the HHS contraception/sterilization/abortifacient mandate by saying, in effect, “no dice.” Read the statement in full here.

Friends of religious freedom–and even those not so friendly to it who wish to learn more about it–will enjoy a public conversation on the subject next week at Georgetown University, where the Religious Freedom Project of the Berkley Center for Religion, Peace, and World Affairs will host Rick Warren, pastor of California’s Saddleback Church, in dialogue with Georgetown political scientist Timothy Samuel Shah, one of the most impressive scholars of global religious freedom working in the field today.  It’s from 4:00 to 5:30 p.m. next Tuesday, February 12, in Gaston Hall on the Georgetown campus (rsvp requested).  More info can be found here.

Joseph Knippenberg describes very well the likely scenario by which the Boy Scouts will move from a surrender on homosexuality to a surrender on atheism. This is just how institutions are conquered by their implacable foes; it always begins with a decision to be “accommodating” that really represents a failure of courage.

Right on cue, the New York Times takes the editorial line today that the Scouts’ proposed new policy, of leaving questions of open homosexuality to the local level of the organization, will not be enough. This would only move from mandating “antigay bigotry” to tolerating it, which is hardly sufficient, if the whole point, as the Times‘ editors believe, is to stamp out such “bigotry.” And, as I wrote yesterday, the pressure will not stop until the Scouts agree to teach the new gospel of gay rights at all levels of the organization.

The members of the BSA’s national executive board may think that the way forward is to find some via media, but in truth it does not exist. On one side are donors who threaten to withhold funds unless the organization caves on homosexuality. On the other are millions of parents, and thousands of churches and other Scout troop sponsors who will abandon Scouting if it does cave. There is no easy way ahead. The choice is between continuing to be beleaguered, or self-destruction. The Scouts will never not be beleaguered, as long as they remain true to themselves. But they will only bring about the death of the Boy Scouts if they prove false to their principles.

Posed in this way, the choice is easy. It is only life that is hard.

The joyful anticipation of a fresh conquest is palpable on the front page of today’s New York Times: “In a Quick Shift, Scouts Rethink a Ban on Gays.” That’s right, at its national executive board meeting next week, the Boy Scouts of America will consider eliminating its present policy of treating the Scouts’ requirement to be “morally straight” as barring openly homosexual boys and men from membership or leadership in the organization. The pressure of the LGBTQA (add a fresh letter at your own discretion) lobby, which has gotten to many corporate supporters of the Scouts, is on the brink of succeeding in altering the moral character of another venerable private institution.

According to the Times, the policy on the agenda of next week’s meeting would result in a localization of moral standards in Scout troops:

Mr. Smith, the Scouts spokesman, said that under the proposed policy, “the B.S.A. would not require any chartered organization to act in ways inconsistent with that organization’s mission, principles, or religious beliefs.” He said that members and parents would be able to choose a local unit that best met the needs of their families.

This attempt at compromise will last about five minutes, if the Scouts’ national executive is foolish enough to adopt it. Already one of the pressure-group leaders who has brought the Scouts to the brink of this change is warning that it does not go far enough:

“It’s a step in the right direction, and good to see that B.S.A. is softening its position,” [Zach Wahls] said. “But under the policy change, it will still be possible for some units to discriminate.”

This is a perfect occasion for a reminder of Neuhaus’ Law, named for First Things founding editor Richard John Neuhaus, who coined it in a “Public Square” entry in the January 1997 issue titled “The Unhappy Fate of Optional Orthodoxy.” Here is the Law as Fr. Neuhaus himself stated it: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.”

As Neuhaus went on to explain, with his usual trenchant insight:

With the older orthodoxy it is possible to disagree, as in having an argument. Evidence, reason, and logic count, in principle at least. Not so with the new orthodoxy. Here disagreement is an intolerable personal affront. It is construed as a denial of others, of their experience of who they are. It is a blasphemous assault on that most high god, “My Identity.” Truth-as-identity is not appealable beyond the assertion of identity. In this game, identity is trumps.

Just so. If the Boy Scouts drop the organization’s present position on homosexuality, not only will millions of parents withdraw their sons from the organization, and thousands of pastors will drop their churches’ sponsorship of Scout troops, they will be absolutely right to do so. For it will only be a matter of time before the Boy Scouts of America will pronounce itself in favor of same-sex marriage; will adopt instructional materials, mandatory in all troops, on the compulsory acceptance, by all members and leaders, of homosexual relations as normal and normative; and will move to silence all dissent from the new orthodoxy by boys, parents, troop leaders, and sponsoring organizations. The Scouts, in short, will rapidly become, from the top down, a national pro-gay organization, local control be damned.

That is the true choice the leaders of the BSA face next week. Be what the Scouts have always been, since the birth of the organization. Or rapidly become what the advocates of the “gay identity” demand, with all its attendant intolerance of dissent. There is no middle way, between standing upright and falling prostrate before new gods.

Oh, and next to go, of course, will be the proscription of atheism, though everyone swears it is not up for discussion now. That too will last about five minutes. You heard it here first.

While I am glancing at the Wall Street Journal, as I did in my last post just below, there was a piece of some passing interest on the congressional politics of gun control in yesterday’s issue. The author was Rep. Mike Thompson of California’s Fifth District, who described himself as having been named last month the “chairman of the U.S. House of Representatives Gun Violence Prevention Task Force.” Reading on, I saw largely liberal policy proposals from Rep. Thompson, of whom I had never heard before, and thought that was a bit unusual coming from someone who chairs a task force in the Republican-controlled House of Representatives.

Only there is no such thing as “the U.S. House of Representatives Gun Violence Prevention Task Force.” There is a group calling itself a “task force” consisting entirely of Democratic members, appointed by minority leader Nancy Pelosi. Thompson is a Democratic member who was chosen to chair it—something neither the article nor his byline specifies in his Journal piece—and he is passing himself off as chairman of some kind of official body of the House itself. Sorry, that’s just misleading at best, and a falsehood at worst, and it’s unlike the editors of the Journal to give such deception a pass in their own pages. If the House as a whole (i.e., a majority in some official action) creates a task force, then there is a ”U.S. House of Representatives Task Force” on something. If the minority party alone assembles to deliberate on its partisan position on an issue, there is no “U.S. House of Representatives Task Force.” In this case, there is a “House Democratic Caucus Gun Violence Protection Task Force.” If the Journal’s editors still control what is published in their pages, that’s what Thompson’s essay should have said he is chairing.

In addition to Joe Carter’s lament this morning on the subject of women in combat, see (if you can, it’s behind a paywall) this piece by Iraq war veteran Ryan Smith in today’s Wall Street Journal.  His description of modern combat’s reality—that the ancient indignities men must endure to fight the enemy have not changed much at all—is not for the squeamish.  Here’s a bit of the less offensive stuff:

The invasion [of March 2003] was a blitzkrieg. The goal was to move as fast to Baghdad as possible. The column would not stop for a lance corporal, sergeant, lieutenant, or even a company commander to go to the restroom. Sometimes we spent over 48 hours on the move without exiting the [overcrowded amphibious assault] vehicles. We were forced to urinate in empty water bottles inches from our comrades.

Read the whole thing, but not while eating lunch.

I’m still scratching my head over a story that appeared in yesterday’s New York Times. Ace reporter Ethan Bronner, who has covered legal matters among others for many years, went out to Palo Alto for the kickoff ceremonies of a new law school clinic at Stanford Law School, the first of its kind, devoted to religious liberty issues. Here are his first two paragraphs:

Backed by two conservative groups, Stanford Law School has opened the nation’s only clinic devoted to religious liberty, an indication both of where the church-state debate has moved and of the growth in hands-on legal education.

Begun with $1.6 million from the John Templeton Foundation, funneled through the Becket Fund for Religious Liberty, the school’s new Religious Liberty Clinic partly reflects a feeling that clinical education, historically dominated by the left’s concerns about poverty and housing, needs to expand.

Well, certainly this story gives “an indication” of where the Times thinks “the church-state debate has moved.” Evidently, for the Times, devotion to religious liberty is now a right-wing cause. And it’s not as though the newspaper went looking for devotees of religious liberty and found only conservatives. It assumed, throughout this story, that evidence of an interest in religious liberty is evidence of conservatism.

Take the Becket Fund, for instance. I know a number of the people at that organization. Some I know to be fairly conservative. About others, I have no idea. But the Becket Fund itself has no political commitments whatsoever outside the field of religious liberty, to which it is zealously devoted, no matter what the political views of its clients. The Fund takes no position on abortion, or same-sex marriage, or the debt ceiling, or gun control. It is all about religious liberty, and that’s it. And that makes it “conservative”?  Huh.  As for the Templeton Foundation, it is broadly interested in what it calls “Big Questions” at the intersection of faith, philosophy, and science. I don’t think Templeton has any “politics” to speak of, but if it is always and only “conservative” to take faith seriously, as the Times now seems to think, well, I guess that settles it.

Oh, and of course, clinical legal education, we’re told, has been “historically dominated by the left’s concerns about poverty and housing.” Conservatives’ only interest in “poverty and housing,” I suppose, is seeing to it that there are plenty of poor people to gouge for the rent in squalid slums. It would have been more accurate to say that clinical legal education has been historically dominated by the left’s belief in litigation and judicial activism to achieve the progressive agenda for poverty and housing that democratic institutions and voters are reluctant to enact.

Now Bronner, the Times’ writer, might be partially forgiven for framing the whole business this way, given what is said to him, on the record, by Stanford Law School’s associate dean for clinical education, Lawrence C. Marshall, a man whose bona fides are established by describing him as “a hero to liberals for his work to exonerate death penalty inmates when he was a professor at Northwestern Law School a decade ago.” (Conservatives, as we know, are in favor of executing innocent people as well as guilty ones.) Here is what Marshall says:

The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well . . . My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.

Astounding. Does Marshall hear what he is saying? “We know that Romney got the votes of everyone who believes in religious liberty. Some of those—let’s face it, incomprehensibly conservative—people come to study at Stanford Law School. They ought to have a clinic too, as a sign that we are as willing to patronize them as we are to patronize women, blacks, and Hispanics.”

When Bronner gets around to quoting the clinic’s founding director, James A. Sonne, he is equally careful to light up Sonne’s presumptive ideological profile with the clues that he “converted to Roman Catholicism while a student at Duke University” and used to teach at Ave Maria School of Law. Then the reporter writes that Sonne “acknowledges the political coloration of much of the religious-freedom debate but says he does not want his clinic to be seen as a program for conservatives.” Notice that when Sonne “acknowledges the political coloration of much of the religious-freedom debate,” no direct quotation is provided so we can see what he actually said in response to what was almost certainly (given the tone of this story) a loaded question.

Bronner also tells us that nowadays, “liberals tend to worry about religious establishment or imposition by government, while conservatives mostly focus on free exercise.” He might have noticed that, in the 9-0 smackdown of the Obama administration a year ago in the Hosanna-Tabor case on the “ministerial exception” to anti-discrimination statutes, the friends of religious freedom relied on both the establishment clause and the free exercise clause of the First Amendment—and so did the Court. One might say, with equal or greater accuracy, that “secular liberals tend to worry about what they call ‘separation of church and state,’ while religious liberals and conservatives alike mostly focus on the protection that both clauses of the First Amendment provide to religious freedom.”

Bronner does paraphrase Stanford’s Michael McConnell, who conceived the idea of the new clinic, as saying that “the divide today” in this area of controversy “is between those who are religiously committed and those who are not.” Does Bronner notice McConnell’s non-ideological description? Or does he simply identify the left with those who lack or even are hostile to religious belief, and the right with those who hold religious beliefs and defend religious freedom? Since he sees fit to call up that tireless separationist and ideologue Barry Lynn (of Americans United for Separation of Church and State) for a canned hostile response to the clinic’s creation, maybe so.

In the Age of Obama, this is increasingly what the world looks like, the left reflexively hostile to faith and freedom, the right defending them. But are we quite there yet? Maybe not quite. When Bronner tells us that “leading conservative scholars” celebrated the creation of the new clinic, one of his three supposedly conservative examples is not a conservative at all, Stephen Carter of Yale. And the keynote speaker at the clinic’s opening? That was Douglas Laycock of the University of Virginia, a liberal through and through (though Bronner seems not to know it), and one of the great champions of religious freedom under the First Amendment, who argued and won the Hosanna-Tabor case on behalf of the Becket Fund and its client.

The world is still a more complicated place than the Times’ template can explain. Is it moving in a direction in which that template is more accurate? I fear it may be. But does the Gray Lady have to give it a push with such tendentious reporting?

UPDATE: For video of the law clinic’s opening ceremonies, see http://bit.ly/SCqXbu.

My friends Sherif Girgis, Ryan T. Anderson, and Robert P. George, authors of What Is Marriage? Man and Woman: A Defense, will discuss their book next Tuesday, January 8, at 12:30 p.m. at the Heritage Foundation in Washington.  The event will be hosted by Jennifer Marshall, director of Domestic Policy Studies and of the Richard and Helen DeVos Center for Religion and Civil Society at Heritage.  If you want to attend, please RSVP online or call (202) 675-1752.  The book will be available for purchase, and to be signed by the authors.

Twenty-five years ago, on July 1, 1987, President Reagan nominated Robert Bork to the U.S. Supreme Court, to replace the retiring Justice Lewis Powell. One hundred fourteen days later, on October 23, 1987, the U.S. Senate declined to give its consent to his appointment, by a vote of forty-two in favor, fifty-eight against. In the time in between, Bork was pilloried as few American public figures have been. But his ideas proved triumphant, even if he never had the chance to put them into practice as an associate justice of the Supreme Court.

I never knew Judge Bork, but I can attest to the sense that one was living through something historic—and historically bad—at the time of his confirmation battle.  Just out of grad school and having taught constitutional law to undergrads in my first year of full-time work as a political science instructor, I was aware of Bork’s intellectual reputation when Reagan nominated him.  (His 1971 article “Neutral Principles and Some First Amendment Problems” was an acknowledged classic, then as now.) I had studied American politics long enough to know that his nomination would not be uncontroversial to politicians and interest groups on the left. But even after the campaign against him began with the slanders of Sen. Edward Kennedy, I did not believe that he would be denied a judicial appointment he so obviously merited.

I should have remembered that where the abortion-on-demand regime is concerned, there is no principle of law, logic, fairness, or integrity that its partisans will not sacrifice in its defense.

Demonized though he had been, Bork went on to distinguish himself as a defender of originalism as the only coherent approach to constitutional jurisprudence, and as a trenchant commentator on American law, politics, and culture.  In the estimation of Adam J. White in the October 2012 Commentary, “Bork Won” in the end, despite his Senate defeat, because originalism is today in the ascendant. The preeminent historian of originalism, Johnathan O’Neill, devotes an entire chapter of his book on the subject to the Bork nomination struggle and its fallout. It was that big a part of our constitutional history. White and O’Neill both get it right, I think.

Much of Bork’s best work in later years appeared in the pages of First Things:

“Natural Law and the Constitution,” March 1992, and a further “Exchange” with others, May 1992.

“Justice Lite,” reviewing John Rawls’s Political Liberalism, November 1993.

“Hard Truths About the Culture War,” June/July 1995.

“Our Judicial Oligarchy,” part of the famous “The End of Democracy?” symposium, November 1996.

“Inconvenient Lives,” December 1996.

“Thomas More for Our Season,” June/July 1999.

“Constitutional Persons: An Exchange on Abortion” with Nathan Schlueter, January 2003.

“The Necessary Amendment,” August/September 2004.

We were all the beneficiaries of his powerful mind. May he rest in peace.

Tonight on (I expect) many PBS stations you can see a documentary called “First Freedom: The Fight for Religious Liberty.” (It’s on from 8:00 to 9:30 p.m. on Philadelphia’s WHYY; check local listings.) I am not endorsing the program, since I want to see it first, but I am heartened by learning that two friends of mine appear in it, Robert George of Princeton and Matthew Holland of Utah Valley University.